Citation Nr: 18159245 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-47 417 DATE: December 19, 2018 ORDER The request to reopen the claim of service connection for a right knee disability, to include degenerative joint disease (DJD), osteoarthritis, and internal derangement, is granted. REMANDED Entitlement to service connection for a right knee disability, to include DJD, osteoarthritis, and internal derangement, is remanded. FINDINGS OF FACT 1. An August 2009 rating decision denied service connection for a right knee disability. The Veteran did not appeal the decision and he did not submit additional evidence within a year after the decision. Therefore, the decision is final. 2. Evidence received since the August 2009 rating decision is relevant and probative as to the issue of service connection for a right knee disability. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the August 2009 rating decision, which denied service connection for a right knee disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1972 and February 1977 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). The Board notes that the Veteran’s August 2015 Notice of Disagreement included the issue of service connection for a lung condition. However, when the Veteran filed his September 2016 Formal Appeal (VA Form 9), he limited his appeal to the issue of service connection for a right knee disability. The issue of service connection for a lung condition is therefore not before the Board. Evidence in the record suggests that the Veteran has been diagnosed with multiple right knee conditions; therefore, the Board will broadly construe the issues as a claim for service connection for a right knee disability however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). NEW AND MATERIAL EVIDENCE Request to reopen the claim of service connection for a right knee disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (2012). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108 (2012). “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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim for a right knee disability was initially denied in an August 2009 rating decision on the basis that there was no current diagnosis. The Veteran was informed of the decision but he did not appeal or submit new and material evidence within a year of the decision, and the decision therefore became final. Since the August 2009 denial, the VA obtained evidence showing the Veteran has right knee arthritis. See March 2014 VA treatment records. This evidence is clearly “new,” because it postdates the August 2009 rating decision, and is also “material,” because it cures an evidentiary defect which existed at the time of the prior denial, the lack of current right knee diagnosis. Consequently, the claim of service connection for a right knee disability may be reopened. REASONS FOR REMAND Entitlement to service connection for a right knee disability. The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Initially, the Board notes that the Veteran reported that he has received treatment from private physicians for his right knee disability from 1979 to 2010 and during his workers compensation claims (Drs. Stephanie T. Hawkins, DO and Patrick J. McGahan, MD). See April 2014 VA examination report; May 2015 Work Progress Report; July 2015 Physicians Progress Report; August 2015 Notice of Disagreement. However, while the Veteran submitted a VA Form 21-4142 (Authorization for Release of Information) for his health insurance company (Mail Handlers Benefit Plan), there is no indication that the VA attempted to obtain any records from any private physicians. On remand, the AOJ should attempt to obtain any such private treatment records relevant to the Veteran’s appeal. Further, the Veteran contends that his disability is related to his active service. Specifically, he asserts that his right knee was injured when he fell from a stack of bombs while in Thailand; he fell on the track while running while in the Army; and while playing basketball. See August 2007 Application for Compensation; April 2014 VA examination report. In this regard, service treatment records (STRs) reflect a diagnosis of right knee tendon pain with persistent complaints of pain, locking, and stiffness (May 1968, June 1968, January 1972, May 1977, March 1978, April 1978, June 1978, November 1978). VA and private treatment records show diagnoses of right knee arthritis and internal derangement with complaints of pain, weakness, and instability (March 2014, May 2015, June 2015, September 2016, December 2016). While the April 2014 VA examiner opined that the Veteran’s right knee disability is less likely than not related to his active service, she based her opinion primarily on a gap in treatment due to missing medical records. Indeed, she reasoned that although veteran was seen for his right knee while in the service, there are still not enough medical records to substantiate veteran’s claim. She noted the Veteran had a civilian primary care provider from 1979 to 2010, but these medical records are not in the file. Finally, the examiner seems to have ignored the Veteran’s competent lay statements regarding continuity of symptomatology. As such, a new VA examination that considers the missing private records is necessary. The matter is REMANDED for the following action: 1. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his right knee disability, to include, as described above, records from 1979 to 2010 and his workers compensation examiners. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 2. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from June 2017 to the present. 3. After the above development in (1) and (2) is complete, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right knee disabilities present during the appeal period (from November 2013). In so doing, it should be noted that the record contains diagnoses of right knee DJD, osteoarthritis, and internal derangement. (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s statements that, as described above, his right knee disability was incurred in service and he has experienced symptoms since active service. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel