Citation Nr: 19152459 Decision Date: 07/08/19 Archive Date: 07/08/19 DOCKET NO. 16-55 540 DATE: July 8, 2019 ORDER New and material evidence having been received, the claim of service connection for a right knee disorder is reopened, and to that extent the appeal is granted. REMANDED Entitlement to service connection for a right knee disorder, to include a total right knee replacement and right knee degenerative arthritis, is remanded. FINDINGS OF FACT 1. The AOJ last denied service connection for right knee degenerative arthritis in an unappealed August 2003 rating decision. 2. Some of the evidence received since the unappealed August 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for right knee degenerative arthritis. CONCLUSIONS OF LAW 1. The August 2003 rating decision that denied service connection for right knee degenerative arthritis is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to December 2000. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board has expanded the total right knee replacement and right knee degenerative arthritis claims on appeal to one for service connection for a right leg condition, to include a total right knee replacement and right knee degenerative arthritis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The change is reflected in the remand portion of the decision. The Veteran's claim for service connection for right knee degenerative arthritis, previously claimed as arthritis knees, was initially denied by way of an August 2003 rating decision. The claim was denied because there was no evidence submitted to indicate the disability had onset in service or was related to service. The Veteran was notified of the decision in an August 2003 letter, but did not appeal or submit relevant evidence within one year. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran submitted a claim to reopen service connection for right knee degenerative arthritis in January 2016. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the August 2003 denial, new evidence in the form of VA treatment records, VA examinations, service treatment records (STRs), military personnel records, and lay statements has been associated with the claims file. Some of that evidence is also material. Initially, the Board acknowledges that the evidence at the time of the August 2003 rating decision included the Veteran’s STRs dated February 24, 1975 through November 1, 2000. Additional STRs and military personnel records which existed at the time of the August 2003 rating decision, including a September 1967 pre-induction examination, were added to the claims file following the August 2003 rating decision. When VA receives relevant official service department records that existed and had not been associated with the claims file at the time of a prior final decision, VA will reconsider the prior decision without requiring new and material evidence. 38 C.F.R. § 3.156(c). However, the additional STRs and military personnel records, contain no symptoms, treatment, or diagnosis related to right knee degenerative arthritis. Thus, the Board finds that these STRs and personnel records are not relevant and thus do not form a basis for reconsideration. Therefore, new and material evidence is necessary to reopen the Veteran’s claim. In this regard, the evidence added to the record since August 2003 includes May 2015 records documenting a diagnosis of right knee osteoarthritis and January 2016 VA records documenting a right knee total arthroplasty. See May 2015 and January 2016 San Diego Naval Medical Center Records. Such evidence, combined with the other evidence of record, raises a reasonable possibility of substantiating the right knee claim and also raises the need to obtain medical examinations and opinions in this case. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). REASONS FOR REMAND The Veteran seeks service connection for a right knee condition, to include a total right knee replacement and right knee degenerative arthritis. Specifically, the Veteran contends that he experienced right knee pain during service as a result of climbing ladders and standing on steel decks while at sea. The Veteran also contends that he has right knee degenerative arthritis secondary to a total right knee replacement. The Veteran has not yet been afforded a VA examination in connection with his claim. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon vs. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Here, the Veteran's post-service treatment records document a right knee total arthroplasty in January 2016 and a diagnosis of right knee osteoarthritis in March 2015. His service treatment records (STRs) document leg jerking and pain and the Veteran has asserted that his current right knee symptoms first began during service. Therefore, the Board finds that the low threshold of the McLendon standard has been met and that the Veteran should be afforded an initial VA examination prior to adjudication of the claims. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any current right knee disorders, to include a total right knee replacement and right knee degenerative arthritis, are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all right knee disorders found, to include a right knee total replacement and/or any arthritic condition thereof. Then, for any right knee disorders found, to include a total right knee replacement and right knee degenerative arthritis, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service, within one year of discharge from service, or are otherwise the result of military service. In addressing the above, the examiner should discuss the complaint of leg jerking and pain documented in the Veteran’s STRs and the notation of possible restless leg syndrome or post-polio syndrome. The examiner should also discuss the Veteran’s contention that he has a right knee/leg condition related to climbing ladders and standing on steel decks while at sea. Additionally, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, 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.