Citation Nr: 20051990 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 17-33 228 DATE: August 5, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee disability is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. A June 2009 rating decision denied service connection for a bilateral knee disability. The Veteran did not appeal that decision. 2. The evidence received since the June 2009 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right knee disability and a left knee disability. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1982 to April 1986. In February 2019, the Board denied the Veteran’s claim. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims. In February 2020, the Court granted the parties’ Joint Motion for Partial Remand filed by the parties, vacating the Board’s decision on the claims, and remanding the claims to the Board for action consistent with the terms of the Joint Motion. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee disability is reopened. To that extent only, the appeal Service connection for a bilateral knee disability was denied in a June 2009 rating decision. The AOJ found that the medical evidence of record did not show a current left or right knee disability, or aggravation of a preexisting disability. Evidence added to the claims file since the June 2009 rating decision includes additional private and VA treatment records, and lay statements from the Veteran and his wife. In particular, the Veteran had a right knee replacement in December 2014. In January 2016, a private treatment records diagnosed chondromalacia, medial meniscus tears in both knees, and left knee pain. In May 2017, the Veteran had a left knee chondroplasty. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). The claim was previously denied because the evidence of record did not show a current left or right knee disability. As the newly submitted evidence shows current diagnoses for both knees, that evidence raises a reasonable possibility of substantiating the claim. Accordingly, the additional evidence is also material. As new and material evidence has been received, the claims for service connection for right and left knee disabilities are reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claims, that does not make it sufficient to allow the grant of the benefits sought and the claim is being remanded. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. In the Joint Motion for Remand, the parties agreed that the Board should consider additional theories of entitlement for service connection. As the claim is reopened, the Board will consider service connection on a direct basis in addition to aggravation of a preexisting disability. The Veteran has not received a VA examination. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral knee disabilities because no VA examiner has opined whether any bilateral knee disabilities are related to service. Therefore, these issues are being remanded to provide the Veteran a VA examination. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. Then, schedule the Veteran for a VA examination addressing the nature and etiology of any bilateral knee disability. The examiner must review the claims file and should note that review in the report. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. A complete rationale for all opinions expressed should be clearly provided. The examiner is asked to provide an opinion and rationale for the following: (a.) Did any knee disability clearly and unmistakably (it is medically undebatable) preexist the Veteran’s entrance to active service? The examiner should state what evidence in the record supports that opinion. In addition to the other treatment records, the examiner should specifically consider the September and October 1982 service medical records documenting the Veteran’s history of knee pain, January 1985 service medical records documenting knee effusion, and the February 1985 motorcycle accident. (b.) If any knee disability is found to have clearly and unmistakably preexisted service, the examiner should provide an opinion as to whether it is clear and unmistakable that the preexisting knee disability was not aggravated during service, including consideration of injuries during service. (c.) For any disability that is found to not clearly and unmistakably have preexisted service, the examiner should provide an opinion was to whether it is at least as likely as not (50 percent or greater probability) that any right or left knee disability is etiologically related to service or any in-service injury, disease, or event. In addition to the other treatment records, the examiner should specifically consider the September and October 1982 service medical records documenting the Veteran’s history of knee pain, January 1985 service medical records documenting a knee effusion, and the February 1985 motorcycle accident. The examiner must also consider and discuss the Veteran’s claimed fall, and then started receiving cortisone injections during active service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.