Citation Nr: 18158815 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-02 983 DATE: December 18, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a left knee condition has been received, the application to reopen this claim is granted. REMANDED Entitlement to service connection for a left knee condition is remanded. FINDING OF FACT 1. An unappealed March 2008 rating decision denied service connection for a left knee condition. 2. Evidence received since this rating decision relate to unestablished facts necessary to substantiate the Veteran’s claim for service connection for a left knee condition. CONCLUSION OF LAW 1. The March 2008 rating decision which denied service connection for a left knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the March 2008 rating decision is new and material, and the Veteran’s claim for entitlement to service connection for a left knee condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 2004 to February 2008. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In that decision the RO denied the Veteran’s claim to reopen based on new and material evidence. In December 2015, the Veteran elected the Decision Review Officer (DRO) process. In a November 2016 Statement of the Case, the Veteran’s claim was reviewed anew by the DRO. It appears that the claim was reopened. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and Material Evidence A claim denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decision makers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). New and Material Evidence for a Left Knee Condition The Veteran’s claim for service connection for a left knee condition was denied in a March 2008 rating decision as the left knee condition was considered congenital and cannot be related to service. That rating decision was not appealed and became final. 38 C.F.R. § 20.302. Since that rating decision, new evidence has been associated with the claims file. In June 2011, the Veteran submitted a request to reopen which was subsequently denied by the RO. The Veteran later submitted a Notice of Disagreement where he explained that in 2008 he originally filed a claim for his left knee after an injury in the military, and that he was given a VA examination where he was informed, for the first time, that he had a congenital condition of bipartite patella. See September 2013 Notice of Disagreement. In his substantive appeal, the Veteran contended that he “never had any issues with [his] left knee prior to serving. [He] was active in sports prior to enlisting with no issue. The military caused added pressure and thus aggravated what [he has] come to find as a pre-existing condition.” The Veteran further indicated that aggravation was the grounds on which he is asserting his claim. See December 2016 Form 9. Notably, at a 2011 VA examination, the examiner corroborated the Veteran’s contentions of having left knee problems in service. The newly added evidence is not duplicative of evidence previously before the RO in March 2008. The evidence is also material as it adds significant detail as to the symptoms the Veteran was experiencing before, during, and after service. The evidence is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening this claim is warranted. REASONS FOR REMAND Entitlement to service connection for left knee condition is remanded. The Board notes that diseases (but not defects) of congenital, development or familial (hereditary in) origin may be recognized as service-connected if the evidence, as a whole, establishes that the familial conditions in question were incurred in or aggravated during service within the meaning of VA regulations. VAOPGCPREC 82-90 (July 18, 1990). In other words, if the evidence, as a whole, establishes that a disease (but not a defect) of congenital, developmental or familial (hereditary in) origin was first manifested during service, or preexisted service and progressed at an abnormally high rate during service, then service connection may be granted for such a disease. See, e.g., VAOPGCPREC 82-90; VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 1-90 (March 16, 1990). On the other hand, defects of congenital, development or familial (hereditary) origin may not be service-connected, because they are not diseases or injuries under the law. 38 C.F.R. § 3.303(c). However, many such defects can be subject to superimposed disease or injury. If, during service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. As previously noted, the Veteran initially applied for compensation in 2008 and was given a VA examination where he was diagnosed with bipartite patella which is a congenital condition. See February 2008 VA Examination at 5. As a result, his claim was denied. In 2011, he filed a request to reopen and asserted that his congenital condition was aggravated by service. In conjunction with his request to reopen, the Veteran was given another VA examination. At that time, the VA examiner noted that the Veteran’s “left knee pain . . . is related to his service, as it has been documented in service. It is not necessarily related to specific Southwest Asia exposure, but he did have left knee pain issues in the service . . . .” August 2011 VA Examination at 4. Nonetheless, the Veteran’s claim remained denied. Although the Veteran’s left knee condition was deemed to be congenital in nature, the February 2008 examination did not adequately explain whether it is static in nature. The opinion simply stated that the Veteran had bipartite patella of the congenital variation. See February 2008 VA Examination at 5. The August 2011 VA examination similarly failed to address whether the condition is considered a disease or a defect. August 2011 VA Examination at 4. Assuming arguendo that the Veteran’s left knee condition is considered a congenital disease, neither examinations discussed whether the condition initially manifested in or was aggravated by a period of service. Therefore, the Board finds both VA examinations to be inadequate. Once VA undertakes to provide the Veteran with a VA examination it must provide the Veteran with an adequate one, and an adequate examination is an examination that is sufficiently detailed to allow a fully formed evaluation of the Veteran’s claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, this matter must be remanded to provide the Veteran with a VA examination addressing the issues discussed above. The matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the Veteran’s left knee condition. The VA examiner must clarify whether the Veteran’s left knee condition is a congenital disease or defect. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (i) For any congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during service. (ii) For any congenital disease, the examiner should state the date of onset, to include whether manifestations of the disease preexisted the Veteran's service. If so, the examiner should state whether there was an increase in the severity during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. For each diagnosis identified that is not congenital and/or did not preexist service, the examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, to include any symptomatology therein. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 2. Review the above opinion to ensure compliance with the above remand directives, and if any opinion is inadequate, take any corrective measures warranted. Additionally, conduct any additional development warranted regarding the Veteran’s claims on appeal as a result of the above. 3. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and allow a reasonable opportunity to response before returning the matter to the Board for further adjudication, if otherwise in order. The Veteran in this case has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Furthermore, his claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B.Y. Nguyen, Law Clerk