Citation Nr: 18150116 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-34 232 DATE: November 14, 2018 ORDER New and material evidence having been received, entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition) is reopened. REMANDED Entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition) is remanded. FINDINGS OF FACT 1. In a March 1988 rating decision, the VA Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition). The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the March 1988 rating decision, by itself or in conjunction with previously considered evidence, related to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition). CONCLUSIONS OF LAW 1. The March 1988 rating decision that denied the Veteran’s claim for entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition) is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the March 1988 rating decision is new and material, and the claim for entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition) is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Whether new and material evidence has been introduced to reopen a claim for entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition). A March 1988 rating decision initially denied the Veteran’s claim for entitlement to service connection for arthritis of the left leg. The RO determined that, in the evidence for review, there was no confirmed diagnosis of arthritis of the legs. The Veteran was notified of the decision and his appellate rights in the March 1988 rating decision. However, the Veteran did not file a timely Notice of Disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the March 1988 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). Since the March 1988 rating decision, the Board has received additional evidence regarding the Veteran’s claim for service connection for arthritis of the left leg, including additional lay statements and medical treatment records that indicate that the Veteran continues to experience leg pain. This evidence is new and material because it was not of record at the time of the final rating decision in March 1988 and indicates that the Veteran has pain in his leg which may be related to his military service. The Board finds this evidence would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the left leg (claimed as bilateral leg condition) is remanded. The Veteran contends that he has arthritis of the left leg due to his military service. No VA examination has been conducted on this issue and neither the Board nor the Veteran have the relevant competencies to form an opinion on a relationship between these diseases. As such the Board finds that a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, related to his left leg that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 2. After the above development has been completed, schedule the Veteran a VA examination to determine the nature and etiology of any left leg condition that may be present, including arthritis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left leg condition, including arthritis, and whether any such condition is related to his military service, to include any symptomatology therein. (Continued on the next page)   3. After completing the above, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel