Citation Nr: 21001157 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-48 697 DATE: January 7, 2021 ORDER The claim of entitlement to service connection for synovitis, left knee with osteoarthritis is reopened; to this limited extent, the appeal is granted. REMANDED Service connection for synovitis, left knee with osteoarthritis is remanded. FINDING OF FACT Service connection was last denied in a February 1990 Board decision; evidence received since this prior final denial relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria for reopening the claim of service connection for synovitis, left knee with osteoarthritis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1960 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800 (c). NEW AND MATERIAL EVIDENCE Generally, a previously denied claim in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA; material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). 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); see Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510,513 (1992). Service connection for left knee synovitis was originally denied in an April 1981 rating decision due to a lack of evidence of a continuing disability and no medical nexus. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156 (b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Service connection for left knee synovitis and osteoarthritis was next denied in a February 1990 Board decision due to a lack of evidence of a medical nexus. Board decisions are final when issued. 38 U.S.C. §7104. The Veteran sought to reopen his claim in December 2016. In a February 2017 rating decision, the RO reopened the Veteran’s claim for service connection but denied entitlement due to lack of a medical nexus. Evidence received since the February 1990 Board decision includes VA treatment records, lay statements, a February 2017 VA examination and opinion, and the Veteran’s November 2020 Board hearing testimony. Some of the evidence received since the previous final denial is new, as it was not previously considered by the Board and is not cumulative or redundant. This evidence, including the testimony of the Veteran and his brother regarding recurrent knee problems since service, as well as the February 2017 VA examination report is material because it relates to causal nexus. When considered along with the evidence previously of record, the hearing testimony raises a possibility of substantiating the claim by triggering the duty to assist. Accordingly, new and material evidence has been received, and the claim for service connection for left knee synovitis with osteoarthritis is reopened. REASONS FOR REMAND Service connection for synovitis, left knee with osteoarthritis is remanded. The Veteran underwent a VA examination in February 2017. The examiner determined that the Veteran’s left knee disability was less likely than not incurred in or related to service. The examiner’s rationale does not, however, reflect consideration of this competent lay testimony of recurrent left knee pain since service. At the recent Board hearing, the Veteran and his brother testified regarding recurrent left knee symptoms since the in-service surgery and after service discharge. See, e.g., November 2020 Board hearing transcript at 8. Additionally, Dr. J.A. submitted a statement in September 1989 attesting to the fact that the Veteran complained of a ‘bad left knee,’ and that swelling was observed, in 1964. Dr. W.M. also submitted a statement in September 1989 attesting to treatment he provided to the Veteran for left knee swelling with synovitis in 1964 and 1965. A copy of an April 1989 VA examination report (which was for an evaluation of his arm) reflects the Veteran complained of left knee problems such as give-way and recurrent pain at that time. The record reasonably reflects continued knee symptoms after service. A medical opinion based solely on the absence of documentation in the treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Thus, an addendum opinion that considers recurrent knee symptoms since the 1961 surgery and post-discharge is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s current left knee conditions. a) State whether the Veteran’s current left knee conditions of synovitis and/or degenerative joint disease are at least as likely as not related to his military service, to include the left knee synovitis initially noted in service. b) State whether the Veteran’s current degenerative joint disease at least as likely as not began during active service, (2) manifested within the one-year presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must provide a complete rationale for all proffered opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. This includes the Veteran’s lay statement of recurrent knee pain after the 1961 surgery, the post-service evidence of treatment in 1964 and 1965, and his 1989 report of recurrent knee pain, swelling and give-way. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.