Citation Nr: 21004201 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-07 386 DATE: January 26, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability; the appeal to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability; the appeal to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability; the appeal to reopen is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded.   FINDINGS OF FACT 1. In an April 1973 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for a left knee disability. The Veteran did not appeal. 2. The evidence pertaining to the Veteran’s service connection claim for a left knee disability submitted after the April 1973 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. In a December 2009 decision, the AOJ denied the Veteran’s claims for service connection for a right knee disability and a low back disability. The Veteran did not appeal. 4. The evidence pertaining to the Veteran’s service connection claims for a right knee disability and a low back disability submitted after the December 2009 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 1973 denial of the claim for service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. As additional evidence received since the April 1973 denial is new and material, the criteria for reopening the claim for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The December 2009 denial of the claims for service connection for a right knee disability and a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 4. As additional evidence received since the December 2009 denial is new and material, the criteria for reopening the claims for service connection for a right knee disability and a low back disability are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An August 2020 order by the United States Court of Appeals for Veterans Claims (CAVC) granting a Joint Motion for Remand (JMR) set aside an April 2019 denial by the Board and remanded the issue for a new opinion. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing 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). Regardless of the determination reached by the RO, the Board must find new and material evidence to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). CAVC has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been received to reopen the claim for service connection for a left knee disability. The Veteran’s service connection claim for a left knee disability was denied in an April 1973 rating decision, because the RO found that there was insufficient evidence of a left knee disability during and following service. The Veteran did not appeal the April 1973 decision. Thus, the April 1973 rating decision became final regarding the service connection claim for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The evidence received since the final denial of April 1973 includes, lay statements from the Veteran stating that he injured his back and knees during service after jumping out of a second story window, and that his complaints of pain were not taken seriously at the time because he was a prisoner. Additionally, VA treatment records from April 2010 note complaints of left knee pain. The Board finds that the newly submitted evidence provides a basis for reopening the Veteran’s claim for service connection for a left knee disability. 2. New and material evidence has been received to reopen the claim for service connection for a right knee disability. The Veteran’s service connection claim for a right knee disability was denied in a December 2009 rating decision, because the RO found that there was insufficient evidence that the Veteran’s right knee condition was related to service. The Veteran did not appeal the December 2009 decision. Thus, the December 2009 rating decision became final regarding the service connection claim for a right knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The evidence received since the final denial of December 2009 includes, lay statements from the Veteran stating that he injured his back and knees during service after jumping out of a second story window, and that his complaints of pain were not taken seriously at the time because he was a prisoner. Additionally, VA treatment records note a history of chronic right knee pain. The Board finds that the newly submitted evidence provides a basis for reopening the Veteran’s claim for service connection for a right knee disability. 3. New and material evidence has been received to reopen the claim for service connection for a low back disability. The Veteran’s service connection claim for a back disability was denied in a December 2009 rating decision, because the RO found that there was insufficient evidence that the Veteran’s back condition was related to service. The Veteran did not appeal the December 2009 decision. Thus, the December 2009 rating decision became final regarding the service connection claim for a back disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The evidence received since the final denial of December 2009 includes, lay statements from the Veteran stating that he injured his back and knees during service after jumping out of a second story window, and that his complaints of pain were not taken seriously at the time because he was a prisoner. Additionally, VA treatment records from May 2014 note that the Veteran has had intermittent low back pain since jumping out of a window in service. The Board finds that the newly submitted evidence provides a basis for reopening the Veteran’s claim for service connection for a back disability. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he is entitled to service connection for left and right knee disabilities. Specifically, the Veteran contends that he has current left and right knee disabilities that are the result of jumping out of a window during his active service. The Veteran last had an examination for his claimed bilateral knee disability in July 1973. The examiner stated that examination of both knees with multiple projections shows that the bone was of normal density, the joint spaces were intact, and there was no fracture, dislocation or destructive process demonstrated. The Board finds the July 1973 examination to be inadequate. Although the examiner noted that the Veteran did not have a diagnosis of a left or right knee condition, the Veteran has consistently claimed to have bilateral knee pain. The Veteran claims that his left knee pain is a result of jumping out of a window during his active service. Additionally, VA treatment records note a history of knee replacement. The examiner did not opine as to whether the Veteran’s claimed bilateral knee condition had its onset in service or was otherwise related to service. Based on the foregoing, the Board must consider whether bilateral knee pain, of which the Veteran has complained, results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Furthermore, it is unclear whether the examiner fully considered the Veteran’s lay statements of record. Specifically, the Veteran’s statements that his knee pain was not taken seriously in the aftermath of his in-service injury. Accordingly, remand is appropriate to obtain an additional VA medical examination regarding the etiology of the Veteran’s claimed left and right knee disabilities. 3. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he is entitled to service connection for a back disability. Specifically, the Veteran contends that he has a current back disability that was the result of jumping out of a window during his active service. The Veteran last had an examination for his claimed back disability in July 1973. The examiner stated that the Veteran’s lumbosacral spine showed the bone to be of normal density, the intervertebral and interpedicular spaces were intact, no fracture, dislocation or destructive process was demonstrated, and the upper portion of the pelvis and psoas muscles were normal. The Board finds the July 1973 examination to be inadequate. The examiner indicated that the Veteran did not have a current diagnosis of a back condition. However, the Veteran has consistently claimed to have chronic back pain and has been assessed to have had chronic low back pain and a herniated disc. The Veteran claims that his back pain is a result of jumping out of a window during his active service and has reported intermittent back pain since. The examiner did not opine as to whether the Veteran’s claimed back condition had its onset in service or was otherwise related to service. Furthermore, it is unclear whether the examiner fully considered the Veteran’s lay statements of record. Specifically, the Veteran’s statements that his back pain was not taken seriously in the aftermath of his in-service injury. Accordingly, remand is appropriate to obtain an additional VA medical examination regarding the etiology of the Veteran’s claimed back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed left and right knee disabilities. The examiner should confirm whether the Veteran has current left and right knee disabilities, to account for his pain. Specifically, the examiner is asked to comment on any functional impairment found due to that pain, (even if not rising to the level of a diagnosable condition). If there is such impairment, the examiner is asked to opine as to the following: Whether it is at least as likely as not (50 percent or better probability) that the Veteran’s current left and right knee functional impairment or diagnosed disability is related to his active duty service. In forming the opinion, the examiner must discuss the lay statements of record, in particular the Veteran’s statement that his current bilateral knee condition was the result of jumping out of a window during his active service and that his bilateral knee pain was not taken seriously at the time. See VBMS, document labeled VA 21-4138 Statement In Support of Claim, receipt date 02/08/2010. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the absence of documented medical treatment or diagnosis in the service treatment records cannot serve as the sole basis for a negative opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed back disability. The examiner should confirm whether the Veteran has a current back disability, to account for his pain. Specifically, the examiner is asked to comment on any functional impairment found due to that pain, (even if not rising to the level of a diagnosable condition). If there is such impairment, the examiner is asked to opine as to the following: Whether it is at least as likely as not (50 percent or better probability) that the Veteran’s current back functional impairment or diagnosed disability is related to his active duty service. In forming the opinion, the examiner must discuss the lay statements of record, in particular the Veteran’s statement that his current back condition was the result of jumping out of a window during his active service and that his back pain was not taken seriously at the time. See VBMS, document labeled VA 21-4138 Statement In Support of Claim, receipt date 02/08/2010. Furthermore, the examiner should address VA treatment records noting that the Veteran’s complaints of intermittent back pain since service. See VBMS, document labeled CAPRI, receipt date 05/11/2016, page 231. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the absence of documented medical treatment or diagnosis in the service treatment records cannot serve as the sole basis for a negative opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.