Citation Nr: 18158990 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-04 613 DATE: December 18, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is REOPENED. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability is REMANDED for additional development. FINDINGS OF FACT 1. A February 1996 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for a left knee disability, finding that the evidence did not show a connection between the claimed condition and active service; the Veteran was notified of the decision and apprised of his right to appeal, but did not file a timely appeal or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the February 1996 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim. CONCLUSION OF LAW 1. The February 1996 rating decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for reopening the claim of service connection for a left knee disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the U.S. Air Force from May 1983 to November 1994. During this time, he was awarded the Southwest Asia Service Medal, the National Defense Service Medal and the Air Force Commendation Medal. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in Waco, Texas. Claim to Reopen The Veteran’s claim for entitlement to service connection for a left knee disability was initially denied by the Oakland, California RO in a February 1996 rating decision, as the claimed condition was not shown by the evidence to be related to the Veteran’s military service. The record reflects that the Veteran did not timely file a Notice of Disagreement in response to the decision, nor did he submit new and material evidence within one year of the issuance of the rating decision. Accordingly, the October 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran subsequently filed to reopen his claim for entitlement to service connection in July 2012. In the process of developing this claim, the RO obtained new medical evidence consisting of the Veteran’s VA treatment records generated after the February 1996 rating decision. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the Veteran’s VA treatment records generated after the issuance of the February 1996 rating decision to constitute “new” evidence, as they were not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as it suggests that there may be a connection between the Veteran’s current left knee disability and his already service-connected right knee disability. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. While the Board sincerely regrets the delay, a remand is required for additional development before the Board may make determinations on the merits of the claims currently on appeal. Specifically, the Board finds that a knee examination is warranted. In this regard, the Veteran underwent a VA knee examination in conjunction with his claim for entitlement to service connection for a left knee disability in January 2013. See January 2013 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire. The examiner noted that Veteran had been diagnosed with left knee strain in 2012 and opined that this condition was less likely than not due to his active service, noting that aside from one documented incident of knee pain in service, there was no continuity of symptomatology after service. Id. The examiner also opined that the Veteran’s left knee strain was less likely than not due to his already service-connected right knee arthralgia because he did not note any “significant history of asymmetric gait resulting from [the Veteran’s] right knee pathology, which would be required to be both highly significant in severity and long-term in order to cause pathology of the opposite (left) knee.” Id. However, the examiner did not provide an opinion regarding the question of whether or not the Veteran’s left knee disability was aggravated beyond its natural progression by a service-connected disability. Id. Additionally, the Veteran underwent magnetic resonance imaging (MRI) of his left knee in May 2014, which showed that the Veteran’s left knee condition had changed. See May 2014 North Texas HCS Primary Care Physician Note (indicating that the MRI of the Veteran’s left knee showed minimal tricompartmental degenerative changes in the left knee; an oblique tear extending to the inferior surface of the posterior horn of the lateral meniscus in the red zone; focal partial-thickness cartilage loss in the anterolateral aspect of the medical femoral condyle; mild suprapatellar bursitis, deep intrapatellar bursitis, and femorotibial joint effusion; diffuse chronic strain of the patellar tendon; a small popliteal cyst; and diagnosing the Veteran with left knee internal derangement). Because the most recent VA examination did not provide opinions for all requested questions, and because the evidence reflects that the diagnosis of the Veteran’s left knee disability has materially changed, the Board finds a new examination is warranted to determine if the Veteran’s current left knee disability is due to, incurred in, or the result of his active service, to include as secondary to his service-connected right knee arthralgia. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matter is REMANDED for the following action: 1. Obtain any additional outstanding VA treatment records for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After completion of the above development, schedule the Veteran for an additional VA examination in the appropriate specialty to determine the nature and etiology of the Veteran’s current left knee disability. The examination should include any diagnostic testing or evaluation deemed necessary. The electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination report must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The examiner is also requested to address the new medical evidence in the record, to include the May 2014 MRI results of the Veteran’s left knee and subsequent diagnosis. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s left knee disability began during, or is otherwise related to the Veteran’s active duty service? (b.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s left knee disability was either (i) caused by or (ii) aggravated by any of the Veteran’s service-connected disabilities, to include his right knee arthralgia? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. If aggravation has occurred, the provider must identify a baseline for the Veteran’s left knee disability. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for the Veteran’s current left knee disability, to include as secondary to a service-connected disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel