Citation Nr: 21063495 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-39 577 DATE: October 14, 2021 ISSUES 1. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left knee disability. ORDER New and material evidence has been received sufficient to reopen a previously denied claim for service connection for a left knee disability, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT 1. The claim for service connection for a left knee disability was denied in a November 2004 rating decision that was not appealed. 2. Evidence received since the November 2004 rating decision for the claim of service connection for a left knee disability includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied and final claim of service connection for a left knee disability. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a June 2021 Board videoconference hearing; copies of the transcript is of record. During this hearing, the record was held open for 90 days; the Veteran subsequently submitted additional evidence in July 2021. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. New and Material Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 agency decisionmakers. 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). 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, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, the claim for service connection for a left knee disability was denied in a November 2004 rating decision that was not appealed. This determination was based upon a finding that the evidence did not show that the left knee condition was related to the service-connected condition of partial tear anterior cruciate ligament Antenor right knee nor was there any evidence of this disability during military service. The evidence received in pertinent part since the November 2004 rating decision includes the Veteran's detailed testimony before the undersigned and a private opinion in May 2014 that will be addressed below. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for a left knee disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the issue on appeal. Historically, the Veteran was afforded a VA examination in November 2004 in which a negative etiological opinion was provided; however, the examiner noted that there was no "objective evidence of injury or discomfort" for the left knee. The Board notes that VA and private treatment records show diagnoses related to the left knee to include osteoarthritis and moderate joint space narrowing and mild peri-articular spurring. As noted above, a private opinion was submitted in May 2014 in which the examiner stated that X-rays showed left knee moderate joint space narrowing and mild peri-articular spurring. The examiner stated that "at least some of her wear to the left knee is secondary to altered gait from her posttraumatic arthritis to the right knee and shifting her body weight to the left lower extremity acting as her primary (strong) knee." The Veteran was afforded a VA examination in September 2014 in which the examiner stated that it was extremely unlikely that the Veteran's left knee patellofemoral pain was related to her time in service and was more likely just natural progression and could not be directly correlated to her time in service. The examiner also stated that it was less than 50 percent likely that the Veteran's left knee pain was a result of her difficulties with her right knee. The Board finds that clarification is required from the September 2014 examiner as the medical opinions of record do not address the pertinent etiological questions before the Board. Namely, an addendum opinion should be sought on remand that addresses whether it at least as likely as not (50 percent or higher degree of probability) that any left knee disability diagnosed during the pendency of this appeal was incurred in or is otherwise related to service, to include her 1988 right knee injury. Moreover, an opinion should be obtained that addresses whether it at least as likely as not (50 percent or higher degree of probability) that any left knee disability diagnosed during the pendency of this appeal was caused or aggravated (permanently worsened) by the Veteran's service-connected right knee disability See Bloom v. West, 12 Vet. App. 185, 187 (1999) (stating that medical opinions that are equivocal in nature, such as those expressed in speculative language (e.g., "could have caused", etc.), do not provide the degree of certainty required for medical nexus evidence); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the September 2014 examiner, or appropriate substitute if required, to provide an addendum opinion. An examination should be performed if deemed necessary by the examiner providing the requested opinions. Following review of the electronic claims file, the examiner should provide an opinion regarding: Is it at least as likely as not (50 percent or higher degree of probability) that any left knee disability diagnosed during the pendency of this appeal was incurred in or is otherwise related to service, to include her 1988 right knee injury? Is it at least as likely as not (50 percent or higher degree of probability) that any left knee disability diagnosed during the pendency of this appeal was caused or aggravated (permanently worsened) by the Veteran's service-connected right knee disability? A rationale should be provided for all opinions expressed. 2. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.