Citation Nr: 19166319 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-42 913 DATE: August 27, 2019 ORDER New and material evidence having been received, the claim for service connection for a left knee disability is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left knee disability was denied in a July 2013 rating decision. The Veteran filed a Notice of Disagreement (NOD) and a Statement of the Case (SOC) was issued, but the Veteran’s substantive appeal was untimely. 2. The evidence received since the July 2013 rating decision is not cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied the Veteran’s claims for service connection for a left knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2018). 2. The evidence received since the July 2013 rating decision was new and material and the claim for service connection for a left knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2018, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge (VLJ) and a copy of the transcript is of record. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. In a July 2013 rating decision, the RO denied service connection for a left knee disability. The RO considered the Veteran’s in-service left knee injury that occurred during basic training. However, in a July 2011 letter from the Veteran’s private doctor, his left knee injury was attributed to a work injury. Accordingly, the RO determined there was no nexus to service. The Veteran was notified of that decision and his appeal rights. He filed a NOD later in July 2014, and the RO issued a SOC in May 2015. While the Veteran filed a substantive appeal in August 2015, this appeal was untimely. He was notified that the Form 9 was untimely in an August 2015 letter. Furthermore, there was also no new and material evidence received within one year of the issuance of the rating decision. Thus, the July 2013 rating decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). In November 2015, the Veteran filed an application to reopen the claim. Since the July 2013 rating decision, additional VA treatment records and private medical records have been received. The new private medical records documented that the Veteran noted his in service injury as a possible cause of his knee pain. The doctors also noted the Veteran’s history of left knee pain since service. Moreover, at his August 2018 Board hearing, the Veteran stated that he experienced knee swelling since service. Accordingly, the Board finds that the new evidence triggers the VA’s duty to assist by requiring a VA examination and medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the Board concludes that new and material evidence has been received to reopen the Veteran’s claim for a left knee disability. 38 C.F.R. § 3.156(a). However, as discussed below, further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND 1. Left Knee The Board finds a VA examination is necessary to determine if the Veteran’s current left knee disability was caused by his in service injury. While the Veteran received a VA examination in June 2017, the examiner did not provide a direct service connection opinion. Additionally, though the examiner determined the Veteran’s left knee disability was not proximately due to his service-connected back disability and that opinion was adequate, no opinion as to aggravation was provided. Thus, an addendum opinion is needed to determine if the Veteran’s left knee disability is directly due to service or aggravated by his back disability. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding his left knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability began during active service or is related to an incident of service, including his in-service injury during basic training. While an independent review of the file is required the examiner should consider the Veteran’s lay statements and private medical records noting the Veteran’s left knee issues since discharge from service. b.) The examiner must opine whether it is at least as likely as not that the Veteran’s left knee disability was aggravated beyond its natural progression by his service connected back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.