Citation Nr: 18159724 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-49 839 DATE: December 20, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left lower extremity/knee disorder is reopened and, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a left lower extremity/knee disorder is remanded. FINDINGS OF FACT 1. An unappealed April 2010 rating decision is the last final decision that denied service connection for a left lower extremity/knee disorder. 2. The evidence received since the final April 2010 rating decision is new and material, and the service connection claim for a left lower extremity/knee disorder is reopened. CONCLUSIONS OF LAW 1. The April 2010 rating decision denying service connection for a left lower extremity/knee disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103. 2. The criteria to reopen the service connection claim for a left lower extremity/knee disorder are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to April 1984. The Board acknowledges that the Veteran submitted a RAMP opt-in election form in November 2018. However, the appeal was already activated at the Board by that time. Therefore, it is no longer eligible for the RAMP program. Petition to Reopen Previously Denied Service Connection Claim Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. It is the Board’s jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a “low threshold” standard is applied. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 1. Whether new and material evidence has been received to reopen a claim of service connection for a left lower extremity/knee disorder In April 2010, the RO denied service connection for a bilateral knee condition. The Veteran did not appeal the April 2010 rating decision, nor was new and material received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). The Veteran most recently petitioned to reopen his claim for a left lower extremity/knee disorder only in August 2012. In a September 2013 rating decision, the RO denied reopening the claim due to the lack of new and material evidence. Based on the procedural history as reflected above, the April 2010 decision is the last final decision regarding the left lower extremity/knee disorder claim. Thus, the question before the Board is whether the evidence received after the final April 2010 rating decision is new and material, as defined above. When the RO issued the April 2010 rating decision, the record included service treatment records (STRs), the October 2009 claims application, VA treatment records, and a December 2009 statement. The April 2010 rating decision denied service connection based on the lack of an in-service incurrence and nexus. The pertinent evidence obtained since the April 2010 rating decision consists of VA treatment records, Social Security Administration records, and a March 2018 statement. Specifically, in the March 2018 statement, the Veteran reported that his January 1982 injury resulted in moderate difficulty ambulating, that his VA treatment records referenced cellulitis of his left lower extremity, and that his military occupational specialty (MOS) as a boiler technician required him to go up and down eight decks of vertical ladders daily. As such, without addressing the merits of this evidence, the Board finds that the new evidence addresses the issue of an in-service incurrence. The Board thus concludes that the evidence received subsequent to the last final decision dated in April 2010 is new and material as it is not cumulative and, when considered with evidence earlier of record, does relate to the unestablished elements necessary to substantiate the claim. For this reason, the petition to reopen is granted.   REASONS FOR REMAND 1. Entitlement to service connection for a left lower extremity/knee disorder is remanded. The claim for service connection for a left lower extremity/knee disorder is remanded for a VA examination. The Board acknowledges that the Veteran has a current diagnosis of osteoarthritis of the left knee, status-post left knee meniscectomy. The Veteran had an in-service injury in January 1982, which he contends affected his ability to ambulate. He also asserts that his MOS as a boiler technician, which required him to go up and down eight decks of vertical ladders daily, is related to his current left lower extremity/knee disorder. Unfortunately, the Veteran was not provided a VA examination in order to evaluate the nature and etiology of his left knee disorder. The matter is REMANDED for the following action: 1. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s left lower extremity/knee disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *A January 1982 STR reflecting that the Veteran slipped on a ladder and was assessed with strain of the back muscles. *A September 2005 VA treatment record reflects a diagnosis of left extremity cellulitis. *An October 2008 VA treatment record reflects a complaint of left knee pain for two and a half months. *A November 2008 VA treatment record reflects that the Veteran had a left knee arthroscopy, partial medial meniscectomy, and chondroplasty at the medial femoral condyle; and a postoperative diagnosis of a left medial meniscus tear. *In December 2009, the Veteran stated that he participated in karate during service, and that he noticed pain when he went up and down ship ladders. *An October 2017 VA treatment record reflecting a diagnosis of left knee osteoarthritis. *A March 2018 statement in which the Veteran indicated that his MOS as a boiler technician caused his left lower extremity/knee disorder. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: Whether it at least as likely as not had an onset during active service or are otherwise related to it. **The examiner should address and discuss the January 1982 in-service back injury; participation in karate during service; and the Veteran’s MOS as a boiler technician, which required going up and down ladders daily.** A complete rationale should be provided for any opinion provided. 2. Thereafter, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee