Citation Nr: 21064342 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-47 425 DATE: October 19, 2021 ORDER The Veteran's claim for service connection for a left knee disability is reopened. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for left leg disorder is remanded. Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for right hip disorder is remanded. Entitlement to service connection for right knee disorder is remanded. FINDING OF FACT Evidence associated with the claims file since February 1981 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. CONCLUSION OF LAW 1. The February 1981 decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 19.52, 20.1103. 2. Evidence received since the February 1981 rating decision that denied service connection for a left knee disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.160(d), 19.52, 20.1103. REASONS AND BASES FOR FINDING AND CONCUSION The Veteran served on active duty in the United States Army from September 1980 to November 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In February 1981, the RO denied the Veteran's claim for service connection a left knee disability on the basis that it pre-existed service and was not aggravated by service. He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. Accordingly, the February 1981 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). At his June 2021 hearing, the Veteran testified that he was in a moped accident prior to service, but that it was not a severe injury, and that running in basic training aggravated it. He stated that he had surgery on his left knee shortly after separation from service, and that he has had 11 total surgeries on it since separation, the most recent being a knee replacement. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b)]," any evidence supporting the Veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Veteran's hearing testimony supports the theory that he injured his knee in service and symptoms have persisted. Reopening of the Veteran's claim for service connection for a disability based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010)(holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND During the June 2021 hearing, the Veteran reported that he had been receiving Social Security Administration (SSA) disability benefits since August 2004 due to the conditions on appeal. These records are relevant to this claim and should be obtained. Further, the Veteran reported that he has been receiving private treatment for all the conditions on appeal. It is unclear if all relevant outstanding private treatment records have been obtained. The Veteran has previously submitted authorization to obtain private treatment records but the VA 21-4142 forms submitted were incomplete. See January 2017 Correspondence. A remand is required to allow VA to obtain authorization and request these records. 1. Service Connection for a Left Knee Disability is Remanded. The AOJ denied the Veteran's claim for service connection for a left knee disability by finding that it preexisted service and was not aggravated by service. However, a left knee disability was not listed on his March 1980 entry examination. Therefore, the presumption of soundness attaches with regard to his left knee disability. The evidence shows that the Veteran was in a vehicle accident prior to service. A VA examination is needed to address whether the presumption of soundness may rebutted and if not, whether there is a nexus between the Veteran's period of service and his left knee disability. 2. Service Connection for a Left Leg Disorder is Remanded. 3. Service Connection for a Low Back Disorder is Remanded. 4. Service Connection for a Right Hip Disorder is Remanded. 5. Service Connection for a Right Knee Disorder is Remanded. The Veteran contends that he has a left knee disability that is related to his active duty service, and that the remaining physical conditions on appeal are the result of his left knee disability. See June 2021 Hearing Tr. at 2. Therefore these issues are inextricably intertwined with the left knee claim. Additionally, at his hearing the Veteran testified that his left knee altered his gait, which caused his other disabilities. A VA examination is needed for these disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran's Social Security Administration disability benefits records. Negative responses must be documented. 2. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 3. Schedule the Veteran for an examination for his claimed left and right knee disabilities and his left leg disability. The entire claims file and a copy of this remand must be made available to the examiner for review. a. With regard to the left knee disability, the examiner must provide opinions as to the following: i. Whether the Veteran's left knee disability clearly and unmistakably existed prior to service. ii. If the left knee disability clearly and unmistakable existed prior to service, determine whether it is also clear and unmistakable that it was not aggravated to a permanent degree in service beyond which would be due to the natural progress of the disease. iii. If the answer to (i) or (ii) is no, determine whether it is at least as likely as not (50 percent or greater probability) that it began in service or is related to active service, to include a running injury. b. With regard to the right knee disability, the examiner must opine as to the following: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was proximately due to or the result of his left knee disability. ii. Whether it is at least as likely as not that his right knee disability was aggravated beyond its natural progression by his left knee disability. c. With regard to the left leg disability, the examiner must opine as to the following: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg disability was proximately due to or the result of his left knee disability. d. Whether it is at least as likely as not that his left leg disability was aggravated beyond its natural progression by his left knee disability. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination for his claimed right hip disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right hip disability was proximately due to or the result of his left knee disability. b. Whether it is at least as likely as not that his right hip disability was aggravated beyond its natural progression by his left knee disability. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Schedule the Veteran for an examination for his claimed back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was proximately due to or the result of his left knee disability. b. Whether it is at least as likely as not that his back disability was aggravated beyond its natural progression by his left knee disability. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. After the above development, and any additionally indicated development has been completed, readjudicate the issues on appeal. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.