Citation Nr: 18156201 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-29 562 DATE: December 7, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a right knee disorder (now claimed as a right leg disorder) is granted. REMANDED Entitlement to service connection for a bilateral leg/knee disorder is remanded. FINDINGS OF FACT 1. An unappealed September 1983 Board decision (from appealed September 1981 and December 1981 rating decisions) denied service connection for a right knee disorder. 2. The evidence pertaining to the Veteran’s right knee disorder submitted subsequent to the September 1983 Board decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1983 Board decision (from appealed September 1981 and December 1981 rating decisions) in which the Board denied service connection for a right knee disorder is final. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 3.156, 20.1100(a), 20.1104. 2. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1969 to March 1971. This appeal arises from an August 2012 rating decision. The Veteran’s appeal has been characterized by the Agency of Original Jurisdiction (AOJ) as a bilateral leg disorder. However, regarding the right leg, the current medical evidence only documents symptoms pertaining to the right knee. A claim for service connection for a right knee disorder was previously denied by the Board. Thus, the Board has recharacterized the issue as shown on the title page and will initially discuss whether new and material evidence has been submitted to reopen the claim of entitlement for a right knee disorder. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a right knee disorder (now claimed as a right leg disorder). In a September 1983 decision, the Board denied the Veteran’s claim for service connection for a right knee disorder. The Board notified the Veteran of its decision and of his appellate rights in a letter dated in September 1983. New and material evidence was not received within a year of the decision. 38 C.F.R. § 3.156(b). As a result, the Board’s decision became final. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 3.156, 20.1100(a), 20.1104. 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 pertinent evidence received since the Board’s September 1983 decision includes VA treatment records, disability benefits records from the Social Security Administration (SSA), a general medical VA examination, and lay statements from the Veteran and his representative. This evidence was not before adjudicators when the Veteran’s claim was last denied in September 1983, and it is not cumulative or redundant of the evidence of record at the time of that decision. The new lay evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disorder, and raises a reasonable possibility of substantiating the claim. Specifically, service connection for a right knee disorder was denied in the September 1983 Board decision because a right knee disorder was not shown to have been present during service or causally or etiologically related to any disease or injury of service origin. The prior Board decision did not discuss the Veteran’s combat military service. Based on information within the August 2013 Notice of Disagreement and the August 2015 Substantive Appeal, there is an indication that the Veteran now claims an in-service injury related to participation in combat. Moreover, his DD-214 Form documents that the Veteran received, in pertinent part, the Combat Infantry Badge for participation in combat operations in the Republic of Vietnam (Vietnam) during the Vietnam War. Based upon 38 U.S.C. § 1154(b), his account of any in-service injury during combat should be presumed competent and credible, provided it is wholly consistent with the circumstances of his military service. The matter is hereby reopened based on new and material evidence, and case development is warranted before a decision on the claims can be made. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral leg/knee disorder is remanded. The Board cannot make a fully-informed decision on the issue because the Veteran has not been provided a VA examination to determine the nature of any bilateral leg/knee disorder and to provide a medical opinion. The current VA treatment records document right knee symptoms and left knee, hip, and ankle symptoms. The Veteran’s DD-214 Form documents that he participated in combat operations in Vietnam. Thus, a VA examination and medical opinion must be obtained upon remand. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature of any bilateral leg/knee disorder. For each current diagnosis provided, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s participation in combat activities in Vietnam. If arthritis is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, to include the Veteran’s participation in combat activities in Vietnam, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel