Citation Nr: 18154434 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 18-06 871 DATE: November 29, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability and the claim is granted to that extent only. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability and the claim is granted to that extent only. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied the Veteran’s claims for entitlement to service connection for a left knee disability and a right knee disability. The Veteran did not appeal that decision, and therefore, the decision became final. 2. The additional evidence submitted since the February 2014 rating decision is new and material as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2014 rating decision which denied the Veteran’s claims for entitlement to service connection for a left knee disability and a right knee disability is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims for entitlement to service connection for a left knee disability and a right knee disability. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from December 1980 to January 1985, with additional service in the National Guard. The Board notes that the Veteran has additional pending claims, however, those claims have not been certified to the Board at this time and therefore, they will be the subject of a future Board decision. VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103(A); 38 C.F.R. § 3.159. However, as discussed below, the Board is reopening and remanding the Veteran’s claims for entitlement to service connection for a left knee disability and a right knee disability disorder, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of these claims is necessary. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. As the facts for the Veteran’s claim to reopen the claims for entitlement to service connection for a left knee disability and right knee disability are virtually the same, they will be discussed together for ease of adjudication. The Veteran’s claims for entitlement to service connection for both a left knee disability and a right knee disability were originally denied in a February 2014 rating decision, were not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The claims were denied on the basis that there was no credible evidence to link the Veteran’s claimed injuries to service. See, February 2014 rating decision. Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. New evidence means existing evidence not previously submitted to agency decision makers. 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 Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. At the time of the February 2014 rating decision, the competent evidence of record included some of the Veteran’s service treatment records and post-service private treatment records. As stated above, the Veteran’s claims were denied on the basis that the Regional Office concluding that the evidence did not provide a sufficient link to relate the disabilities to the Veteran’s service. The Board finds that new and material evidence has been submitted since the February 2014 rating decision. Specifically, the newly submitted evidence includes an examination report from an August 2015 VA examination, additional post-service treatment records, and statements from the Veteran in support of his claims. The Board finds the above-mentioned evidence is new in that it was not of record at the time of the previous denial in February 2014. It is material in that it speaks directly to the Veteran’s claim for entitlement to service connection for a left knee disability and a right knee disability. Furthermore, when considered with the previous evidence of record, it could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 118 (2010). The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claims for service connection for a left knee disability and right knee disability are both reopened. REASONS FOR REMAND While the Board sincerely regrets further delay, additional development is required before the Veteran’s remaining claims may be adjudicated on the merits. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. Specifically, the Board notes that the Veteran’s service treatment records and personnel records are incomplete. The Veteran’s service treatment records only contained a few entries from 1984, and the enlistment and separation examinations were only from the Veteran’s period with the National Guard. While it appears that the Regional Office (RO) requested the Veteran’s records from the Records Management Center (RMC), there is no evidence that the RO made additional attempts to obtain the Veteran’s complete records from other appropriate locations and no formal finding of unavailability of these records has been associated with the Veteran’s file. As service treatment records and service personnel records may contain relevant supporting evidence, on remand, the Agency of Original Jurisdiction (AOJ) should contact the National Personnel Records Center (NPRC), or any other appropriate location, to request the Veteran’s complete service treatment records and service personnel records in order to comply with the duty to assist. 38 U.S.C. § 5103A. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. The AOJ should contact the NPRC and any other appropriate location to request the Veteran’s complete service personnel and service treatment records. These efforts should include appropriate requests using the PIES system and any other procedures as required by the VA Adjudication Procedures Manual, M21-1, Part III, Subpart iii, Chapter 2, Section 1. If any of the requested records remain unavailable, or the search for any such records otherwise yields negative results, the fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Required notice must be provided to the Veteran, to include notice of alternative sources of evidence that may substitute for any missing service treatment records or missing personnel records. 3. Additionally, after reviewing any new information obtained as a result of the instructions above, the AOJ should consider the potential need for new examinations or medical opinions before readjudicating the Veteran’s claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel