Citation Nr: 18147485 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-08 412 DATE: November 5, 2018 ORDER The petition to reopen the claim of entitlement to service connection for bilateral knee disabilities is granted. REMANDED Entitlement to service connection for bilateral knee disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s original claim for service connection for bilateral knee disabilities was denied by a November 1985 rating decision. The Veteran did not perfect an appeal of that decision, and it became final. 2. Since the November 1985 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The evidence received since the November 1985 rating decision is new and material, and the claim for entitlement to service connection for bilateral knee disabilities is reopened. 38 U.S.C. § 5108(a) (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training in the Army National Guard from June 1983 to October 1983. The Veteran first filed a claim for service connection for bilateral knee disabilities, including chondromalacia, in May 1985. The claim was denied in a November 1985 rating decision, which the Veteran did not appeal and which therefore became final. In May 2013, the Veteran applied to reopen the claim for service connection for bilateral knee disabilities. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, denying the Veteran’s application to reopen. The Veteran declined a hearing before the Board. See 38 C.F.R. §§ 3.103, 20.700(a). Generally, a claim that has been denied by an unappealed decision of the RO or of the Board may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). Where new and material evidence is submitted regarding a claim with the same injury or disease, however, the claim must be reopened and readjudicated in consideration of the new and material evidence together with the evidence previously considered. 38 U.S.C. § 5108(a). “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means existing 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). The phrase “raises a reasonable possibility of substantiating the claim” is a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The November 1985 rating decision acknowledged medical evidence diagnosing the Veteran with bilateral chondromalacia and therefore found that the Veteran had established she suffers a current disability. The rating decision went on to ultimately deny the Veteran’s claim on the basis that the Veteran had failed to show that her bilateral knee disability was either incurred in or aggravated by service. Since the November 1985 rating decision, additional evidence has been associated with the claims file. A May 2014 letter opinion from a private orthopedic physician who examined the Veteran indicated that the Veteran had informed him of her experiences in service and that she had potentially “c[o]me down hard on the anterior knees.” Moreover, the Veteran submitted her own statement that this examiner told her “that past trauma (military training) is the factor of my problems to both my knees.” As these statements are evidence submitted for the purposes of reopening a claim, they are presumed credible. Justus v. Principi, 3 Vet. App. 510 (1992). Neither this specific evidence, nor any other evidence regarding a nexus between the current disability and the alleged in-service injury, was previously submitted to or considered by agency decisionmakers. Because the November 1985 rating decision did not find that the Veteran had carried her burden to show a nexus, evidence establishing a nexus is necessary to substantiate her claim, and this additional evidence relates to a nexus between the current disability and the alleged in-service injury. Shade, 24 Vet. App. at 120-22. The Board finds that these statements, competently made by their respective sources and both presumed credible, raise a reasonable possibility of substantiating the claim. In turn, the Board finds that this evidence is new and material, and will grant the Veteran’s application to reopen the claim for service connection for bilateral knee disabilities. 38 C.F.R. § 3.156; see Shade, 24 Vet. App. at 121. REASONS FOR REMAND In finding that the Veteran’s evidence is new and material, the Board is cognizant of the Veteran’s potential entitlement to a nexus medical examination upon her claim being reopened. See Shade, 24 Vet. App. at 121. Indeed, with the claim now reopened, the Secretary of VA’s satisfaction of his duty to assist the Veteran becomes a live issue. 38 U.S.C. § 5103A. The current record does not contain an adequate opinion as to whether the veteran’s bilateral knee disability is related to service. On remand, the Veteran must be provided a VA examination. The Board will also remand for the RO to make reasonable efforts to obtain any records of examination or treatment of the Veteran that may exist at the offices of Dr. J.V., whose May 2014 letter opinion the Veteran submitted to the record. 38 C.F.R. § 3.159(b). The Veteran related that this physician told her that trauma during service is the cause of her knee disabilities. Records containing statements of this character, if they exist, would be highly relevant to the Veteran’s claim. As a final matter, the Board acknowledges the Veteran’s statements of record beginning in 1984 that her knee condition was due to injuries sustained during basic training in June or July 1983. She stated that she went to sick call but that “they didn’t do much at all,” and that despite reporting the injury to supervisors and sustaining bruising on her knees the day after, nobody logged it. The Board invites the Veteran to submit any similar statements on her own behalf, or to submit any other evidence, concerning details of the injury she sustained in service or concerning whether her current disabilities are causally related to the injury she sustained during her service. The matter is REMANDED for the following action: 1. Provide the Veteran with a release form for any outstanding private medical records, to include from Dr. J.V., pertinent to her knee claims. If she returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above-directed development, schedule the Veteran for a VA examination with an appropriate physician to determine the etiology of any current disability in either the left knee or the right knee, or both knees, including but not limited to chondromalacia. The examiner is asked to provide an opinion whether it is at least as likely as not (50 percent probability or greater) that any current knee disability is related to the Veteran’s service from June to October 1983. The claims file should be made available to the examiner. In particular, the service medical records must be reviewed. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be acknowledged and considered in formulating any provided opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel