Citation Nr: 18155108 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-49 845 DATE: December 4, 2018 ORDER The petition to reopen the claim of entitlement to service connection for right knee disability is granted. The petition to reopen the claim of entitlement to service connection for left knee disability is granted. The petition to reopen the claim of entitlement to service connection for lower back disability is granted. REMANDED The issue of entitlement to service connection for right knee disability is remanded. The issue of entitlement to service connection for left knee disability is remanded. The issue of entitlement to service connection for lower back disability is remanded. FINDINGS OF FACT 1. By a February 1999 rating decision, the claim of entitlement to service connection for a right knee disability was denied. That decision was not appealed and is final. 2. By an August 2014 rating decision, the claims of entitlement to service connection for left knee and lower back disabilities were denied. That decision was not appealed and is final. 3. Additional evidence has been received, which is not cumulative or redundant of the evidence of record at the time of the February 1999 and August 2014 rating decisions, that relates to unestablished facts necessary to substantiate the claims for service connection for a right knee, left knee, and lower back disabilities. CONCLUSIONS OF LAW 1. The February 1999 rating decision denying service connection for right knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. The August 2014 rating decision denying service connection for a left knee and lower back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 3. New and material evidence has been received to reopen the claims of entitlement to service connection for right knee, left knee, and lower back disabilities and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1978 and from December 1979 to September 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) regional office (RO). New and Material Evidence The Veteran claims service connection for bilateral knee and lower back disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §3.303 (2018). To establish a right to compensation for a present disability, a claimant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). By way of history, the Veteran filed his claim for left knee and lower back disabilities in September 1997. The RO denied the Veteran’s left knee and lower back claims, as well as considered a claim for a right knee disability, which was also denied, in a November 1998 rating decision. The RO issued a subsequent rating decision in February 1999, which denied the Veteran’ claims after a review of the Veteran’s service treatment records (STR’s) that had been previously unavailable. The Veteran did not appeal that decision, which became final at the one-year mark. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Thereafter, the Veteran filed a claim to reopen his left knee and lower back disabilities in February 2014, which the RO denied in August 2014. The Veteran did not appeal this decision, which became final at the one-year mark. Thereafter, the Veteran filed a claim to reopen his right knee, left knee, and lower back disabilities in October 2015, which the RO denied in the June 2016 rating decision on appeal. A claim may 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” unless the evidence is inherently incredible or beyond the competence of the witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that the RO reopened the Veteran’s claims multiple times, most recently in its November 2016 SSOC. However, the Board is required to make its own determination as to whether new and material evidence has been received to reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In the final prior rating decisions, the RO denied the claims based on the lack of evidence of a current disability. Since the final rating decisions, new evidence demonstrating bilateral knee and back disabilities has been included in the record. Further, the Veteran has submitted lay statements asserting a connection between service and the disabilities. This evidence is new and material, as it provides evidence that was previously unsubstantiated. Further, the new evidence raises a reasonable possibility of substantiating the claims of service connection. As such, the claims are reopened. REASONS FOR REMAND A remand is warranted for additional medical inquiry into the claims on appeal. The Veteran underwent VA compensation examination into his claims in January 2016. An addendum medical opinion should be provided because – it is not clear in the examination report that the examiner considered the Veteran’s lay assertions regarding the ways in which he claims to have injured his knees and back during service; it is not clear that the examiner considered the lay evidence in light of STRs documenting knee and back injuries during service; it not clear that the examiner considered VA treatment records addressing knee and back disabilities; it is not clear that the examiner considered both knees in the examination; and an addendum opinion is required because a medical nexus opinion was not provided for back disability. The matters are REMANDED for the following action: 1. Include in the claims file any relevant VA medical evidence that is not currently of file. 2. Obtain an addendum medical opinion from the examiner who conducted the January 2016 VA examination, or from another qualified medical professional. After reviewing the claims file including the January 2016 VA report, the following questions should be answered: (a). Is it at least as likely as not (i.e., probability of 50 percent or greater) that a diagnosed knee and/or back disability is due to an event, injury, or disease during active duty? (b). If either or both knee disorders are found to be service connected, is it at least as likely as not that lower back disability is due to or caused by knee disability? (c). If the answer to (b) is negative, is it at least as likely as not that back disability is aggravated by knee disability? In answering these questions, consider and discuss the STRs which tend to corroborate the Veteran’s claims that he experienced, in his 20 years of active duty with the U.S. Navy, multiple knee and back injuries. Comment on his claim that his duties as an aircraft mechanic required him to be on his knees for much of his work, which caused repetitive stress to his knees. Also, comment on his claim that he injured his back during service by lifting heavy objects. The Veteran is competent to report observable symptomatology to include any adverse symptoms he may have experienced during service, and since service. (Continued on the next page)   Please explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel