Citation Nr: 18144893 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-40 353 DATE: October 25, 2018 ORDER The application to reopen a claim of service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to a compensable rating for degenerative changes, right wrist, is remanded. Entitlement to a compensable rating for status post fracture of third metacarpal, left hand, is remanded. FINDINGS OF FACT 1. In March 2000, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee disability; the Veteran filed a timely Notice of Disagreement (NOD), but did not perfect the appeal. 2. Evidence received since the March 2000 decision is new and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability. CONCLUSIONS OF LAW 1. The March 2000 decision that denied service connection for a right knee disability is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2017). 2. Evidence received since the March 2000 decision that denied a claim for a right knee disability is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1992 to October 1995, and from May 1997 to May 1999. On June 19, 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file, which reflects that the Board would keep the record open for a period of 90 days for the submission of additional evidence. See Hearing Transcript at 2. On September 27, 2018, the Veteran submitted medical evidence. No waiver is necessary since the Veteran submitted his VA Form 9 in September 2014. New and Material Evidence A finally denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 1. The application to reopen a claim of service connection for a right knee disability. In March 2000, the AOJ denied service connection for “anterior [] pain, right knee (previously Osgood-Schlatter’s disease).” The Veteran filed a timely NOD, but did not perfect the appeal. No new evidence was received within a year of the decision. As such, it became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. During the June 2018 hearing, the Veteran testified that he did not have any problems with his right knee prior to service, and that his right knee pain started after an in-service injury. Hearing Transcript at 15. His lay statements are presumed credible under Justus v. Principi, 3 Vet. App. 510 (1992). The evidence relates to a previously unestablished element of the claim (nexus) and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is considered both new and material. Thus, this claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability. The Veteran contends that his currently diagnosed right knee disability is related to service. He testified that he did not have any problems with his right knee prior to service, and that it was only after hitting his knee on a rock during his first period of active service that he developed a problem. The April 1992 enlistment examination reflects a normal lower extremity evaluation. A January 1993 service treatment record (STR) shows that the Veteran was treated for right knee pain after hitting his knee on a stone the day before. The diagnosis was contusion. In June 1995, he was treated for right knee pain after colliding with another soldier the week before. The diagnosis was inferior patellar tendonitis, rule out fracture. X-rays showed a prominent bony protuberance with some swelling that the radiologist felt represented “old change.” The July 1995 separation examination contains a diagnosis of bony right tibial tubercle. The clinician noted that the Veteran’s right knee condition was secondary to trauma. The July 1997 enlistment examination reflects a normal lower extremity evaluation. In December 1997, the Veteran was treated for right knee pain. He was treated for right knee pain again in March 1998 after falling on a hill and hitting his knee. The diagnosis was patella tendonitis/bursitis versus Osgood Schlatter’s disease, “?medial meniscal defect.” X-rays showed a prominent tibial tubercle that the radiologist felt was congenital and most likely of no clinical significance. The Veteran continued to receive treatment for his right knee, and was given a limited profile, until his discharge. A January 1999 medical evaluation board (MEB) examination reflects decreased range of motion with pain. The February 1999 MEB report contains a diagnosis of anterior knee pain, medically unacceptable, existed prior to service, not aggravated by service. Every veteran is presumed sound at entry, except as to defects noted at entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304 (b). STRs show a normal entrance examination in April 1992. Although a right knee condition is noted on the July 1995 separation examination, the July 1997 enlistment examination was nevertheless normal. Thus, because a right knee disorder was not noted at service entrance, the presumption of soundness applies to both periods of service. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). However, no VA examination has been provided. Because the Veteran is presumed sound with regard to his right knee at his entry into service, injured his right knee during service, and contends that he has had right knee problems since, the Board finds that an examination is necessary to determine the etiology of any currently diagnosed right knee disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, evidence indicates that there may be outstanding relevant VA treatment records. During the June 2018 hearing, the Veteran reported that he was treated for right knee pain at the Tallahassee VA Medical Center between his 1999 discharge and when he enrolled in the police academy (2004 or 2005). Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. 3. Entitlement to a compensable rating for degenerative changes, right wrist. 4. Entitlement to a compensable rating for status post fracture of third metacarpal, left hand. During the June 2018 hearing, the Veteran presented testimony indicating that the service-connected left middle finger and right wrist disabilities have generally worsened since the time of his last VA examination in June 2014. A remand is therefore warranted so that the Veteran can be scheduled for the appropriate medical examination to determine the current level of impairment associated with these disabilities. See Weggenmann v. Brown, 5 Vet. App. 281 (1993) (holding that when a veteran claims a service-connected disability is worse than when originally rated, and the available evidence is not sufficiently current so as to provide for an adequate evaluation of his present condition, VA’s duty to assist includes providing a new medical examination).   The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Tallahassee VA outpatient clinic from May 1999 to December 2005. All attempts to obtain records should be documented in the claims file. 2. Then, schedule an appropriate VA examination to determine the etiology of any currently diagnosed right knee disability. The claims file must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished and all clinical findings reported in detail. a) Please list all currently diagnosed right knee disabilities. b) Is it clear and unmistakable that any currently diagnosed right knee disability existed prior to either period of active service (October 1992 to October 1995, and May 1997 to May 1999)? c) If yes, is it clear and unmistakable that the right knee disability was not aggravated beyond normal progression by either period of active service (October 1992 to October 1995, and May 1997 to May 1999)? d) If no, is it at least as likely as not (50 percent probability or greater) that such disorder had its onset during either period of service (October 1992 to October 1995, and May 1997 to May 1999) or is otherwise related to service? The examiner should specifically consider the relevant STRs discussed above, as well as the Veteran’s June 2018 testimony. A supporting rationale for all opinions expressed must be provided. 3. Schedule an appropriate VA examination to determine the current nature and severity of the Veteran’s service-connected degenerative changes, right wrist, and status post fracture of third metacarpal, left hand. The claims file must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished and all clinical findings reported in detail. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel