Citation Nr: 18149163 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-43 096 DATE: November 8, 2018 ORDER The previously denied claim of entitlement to service connection for bilateral knee disability is reopened. REMANDED Entitlement to service connection for bilateral knee disability is remanded. FINDINGS OF FACT 1. By a final September 2013 rating decision, the Regional Office (RO) denied service connection for bilateral knee disability. 2. Additional evidence received since the RO’s September 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s September 2013 rating decision that denied service connection for bilateral knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral knee disability. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1988. 1. The previously denied claim of entitlement to service connection for bilateral knee disability is reopened. In a September 2013 rating decision, the RO denied service connection for bilateral knee disability on the basis that there was no connection to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO’s September 2013 rating decision includes the Veteran’s April 2017 statement asserting that his bilateral knee disability is due to the constant bending, squatting, and climbing up and down stairs while serving on the ship during service. This evidence was not before adjudicators when the Veteran’s claim was last finally denied, and it is not cumulative or redundant of the evidence of record at the time of the decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral knee disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral knee disability because no VA examiner has opined whether the Veteran’s knee disabilities are related to service or secondary to his service-connected back disability or psychiatric disability. The Veteran has asserted that his knee disabilities were caused by the constant bending, squatting, and climbing up and down stairs while serving on the ship during service. See Veteran’s April 2017 Statement. The Veteran has also asserted that his knee disabilities are caused or aggravated by his back disability, specifically gait problems due to his back disability. An August 2017 VA mental health examination notes a potential connection between the Veteran’s knee pain and his service-connected psychiatric disability. Accordingly, remand is appropriate in order to obtain VA medical opinion on these issues. While this matter is on remand, outstanding private and VA treatment records should be obtained, including VA treatment records from May 2018 to the present. The records show that the Veteran received VA contract care and that records were scanned into his VA medical file. The RO should ensure that all relevant documents scanned into Vista Imaging are associated with the Veteran’s claims file. The matter is REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claim. 2. Obtain additional VA treatment records from May 2018 to the present. Associate with the claims file all relevant documents scanned into Vista Imaging but not associated with the Veteran’s claims file. 3. After obtaining any outstanding records, ask the appropriate orthopedic examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current left or right knee disability the Veteran has presented during the claim period (from September 2015 to the present). For each disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; (c) is caused by or aggravated by his service-connected back disability; or (d) is caused by or aggravated by his service-connected psychiatric disability. For arthritis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested to a compensable degree within a year of separation from service (by October 1989). The examiner should consider all medical and lay evidence of record. The Veteran has asserted that his knee disabilities were caused by the constant bending, squatting, and climbing up and down stairs while serving on the ship during service. See Veteran’s April 2017 Statement. In a September 1988 Report of Medical History at the time of separation, the Veteran reported swollen or painful joints. The Veteran has also asserted that his knee disabilities are caused or aggravated by his back disability, specifically gait problems due to his back disability. An August 2017 VA mental health examination notes a potential connection between the Veteran’s knee pain and his service-connected psychiatric disability.   A complete rationale should be given for all opinions and conclusions expressed. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel