Citation Nr: 18148919 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-37 188 DATE: November 8, 2018 ORDER The claim for service connection for a left knee disorder is reopened. REMANDED The claim for service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The RO denied service connection for a left knee strain in a July 1999 decision, which the Veteran did not appeal. 2. The evidence associated with the claims file since the July 1999 decision is not cumulative or redundant of previously submitted evidence, relates to an unestablished fact of a current left knee disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1999 rating decision is final with respect to the service connection claim for a left knee disability. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim for service connection for a left knee disability are satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his August 213 Notice of Disagreement, the Veteran raised allegations of Clear and Unmistakable Error (CUE) in a prior July 1999 RO decision which denied service connection for a left knee disability. The question of CUE in a prior RO decision has never been adjudicated by the RO. The United States Court of Appeals for Veterans’ Claims (Court) has held that when a new theory of CUE is presented first to the Board, such matter is not “subject to decision by the Secretary,” and the Board would lack appellate jurisdiction over the newly raised theory of CUE. In such a circumstance, the Board is obligated to refer that theory of CUE to the RO to “be decided in the same manner as any other claim.” 38 U.S.C. § 5109A (e); see Godfrey v. Brown, 7 Vet. App. 398, 410 (1995). Accordingly, the allegations of CUE in a prior July 1999 RO decision as raised in the August 2013 Notice of Disagreement are referred to the RO for appropriate action. See 38 C.F.R. §19.9(b) (2017). The claim for service connection for a left knee disorder is reopened. The Veteran seeks to reopen his claim for service connection for a left knee disorder. For the following reasons, the Board finds that new and material evidence has been received to reopen the claim. A. Law A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no Notice of Disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2018) (setting forth requirements and timeframe for initiating and perfecting an appeal). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final denial of the claim, regardless of the basis for that denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new and material evidence need not be submitted as to each previously unproven element of a claim to warrant reopening. In Shade, where the claim was previously denied because the evidence did not show a current disability or a nexus to service, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material, and sufficient to reopen the claim. Id. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine independently whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). B. Analysis The RO denied service connection for a left knee disability in a July 1999 rating decision, finding that the Veteran had not filed a well-grounded claim. He was notified of the decision and his appellate rights in a July 1999 letter. See 38 U.S.C. § 5104 (2012); 38 C.F.R. §§ 3.103, 19.25 (2017). He did not submit a NOD. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Moreover, new and material evidence was not received by VA within one year of the notification of the denial. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). Therefore, the July 1999 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. New and material evidence has been received since the April 1999 rating decision. In that decision, the RO found that the Veteran had not submitted a well-grounded claim because the evidence did not show a current disability. In this regard, the RO noted that an April 1999 VA examination was essentially unremarkable, and no functional incapacity was demonstrated. Since the July 1999 rating decision, additional evidence showing a current diagnosis of the left knee has been associated with the claims file. Specifically, the March 2015 VA examination report reflects a current diagnosis of left knee strain. The March 2015 VA examination report is new, as it was not in the file at the time of the April 1999 rating decision. It is also material since it relates to the unestablished fact of a current left knee disability, which is an element of service connection that must be satisfied to substantiate the claim. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). It raises a reasonable possibility of substantiating the claim in conjunction with other evidence, as it at least indicates that the Veteran has a current left knee disability that may be related to his in-service left knee patellofemoral pain syndrome. See id.; 38 C.F.R. § 3.303 (2017); Shade, 24 Vet. App. at 117-18 (there is a “low threshold” for reopening). Accordingly, the claim for service connection for a left knee disability is reopened. REASONS FOR REMAND The claim for service connection for a left knee disorder is remanded. A new examination and opinion are warranted. In the March 2015 VA examination report, the examiner opined that the Veteran’s left knee disability was less likely than not related to service because “there was no clearly documented continuum of care from service until now.” This explanation is not sufficient to make an informed decision. Establishing service connection does not require that there be documented treatment for the claimed condition. Cf. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)) (holding that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). The examiner’s opinion appears solely based on the absence of evidence of treatment, and does not address the fact that the Veteran has reported experiencing left knee pain since service. The matter is REMANDED for the following action: 1. Arrange for an examination of the Veteran’s left knee, and a medical nexus opinion, as specified below. After examining the Veteran and reviewing the file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s current left knee condition is related to disease or injury incurred in service. The examiner should consider (but need not specifically discuss) the following evidence. An October 1987 service treatment record shows that the Veteran reported left knee pain, and was diagnosed with patellofemoral pain syndrome (“PFPS”). At an April 1999 VA examination (dated only a few months after he separated from service, in December 1998) he reported pain in both knees that began in boot camp. He stated that he had daily pain in a continuous fashion in both knees. A January 2016 VA treatment record reflects that the Veteran had a long-standing history of bilateral knee pain that developed over time during active service. The examiner must provide a complete explanation in support of the conclusion reached. (Please note: The March 2015 VA medical opinion is not sufficient, as it was based solely on the absence of treatment (i.e., a “documented continuum of care”), without addressing the Veteran’s reports of left knee pain since service.) J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel