Citation Nr: 21065971 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-31 605 DATE: October 28, 2021 ORDER New and material evidence has been received to reopen a service connection claim for a right knee disability. New and material evidence has been received to reopen a service connection claim for a left knee disability. New and material evidence has been received to reopen a service connection claim for a low back disability. REMANDED Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for a low back disability is remanded. FINDINGS OF FACT 1. In May 2006, the RO denied the Veteran's claim for service connection for bilateral knee and low back disabilities. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. Certain evidence received since the May 2006 decision is neither cumulative nor redundant of the evidence of record at the time of the May 2006 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. CONCLUSIONS OF LAW 1. The May 2006 RO rating decision, which denied service connection for a right knee disability is final. 38 U.S.C. § 7105. Evidence received since the May 2006 RO rating decision is new and material; accordingly, the claim for service connection for is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The May 2006 RO rating decision, which denied service connection for a left knee disability is final. 38 U.S.C. § 7105. Evidence received since the May 2006 RO rating decision is new and material; accordingly, the claim for service connection for is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The May 2006 RO rating decision, which denied service connection for a low back disability is final. 38 U.S.C. § 7105. Evidence received since the May 2006 RO rating decision is new and material; accordingly, the claim for service connection for is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to October 2005. He is in receipt of a Combat Action Ribbon among several other medals and awards. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). New and material evidence has been received to reopen service connection claims for a right knee disability, a left knee disability, and a low back disability. The RO originally denied these claims by way of a May 2006 rating decision. The Veteran did not file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). Final decisions are not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The evidence on record at the time of the May 2006 denial consisted of the service treatment records and a January 2006 VA examination. The service treatment records reflect that the Veteran reported right knee pain of three weeks duration in August 2002. He was assessed with patellar tendinitis. He still had right knee pain in October 2002; and he was diagnosed with Osgood-Schlatter's disease. The January 2006 VA examination included normal x-rays of both knees and the Veteran's low back. The examiner diagnosed right and left knee strains, and a low back strain. The bases for the denials included the fact that although the VA examiner diagnosed right and left knee strains, the RO found that there was "no objective evidence of any sort of current pathology to support that diagnosis." Regarding the low back, the RO found that the service treatment records failed to include any findings attributed to the Veteran's low back. Evidence received since the May 2006 rating decision includes VA examinations dated October 2017 (see also an additional October 2017 examination report), testimony from an April 2021 Board Hearing, and lay statements from the Veteran's family (spouse, brother) and neighbors. The October 2017 examinations reflect limitation of motion in both knees and lumbar spine. The Veteran's testimony reflects that the disabilities are the result of injuries sustained during combat. The Veteran's DD Form 214 confirms he received a Combat Action Ribbon. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In this case, the October 2017 VA examination reflected objective evidence (abnormal range of motion) of a disability that the RO found lacking in its prior denial. Additionally, the testimony that the Veteran incurred combat-related injuries would negate the basis for the prior denial insofar as the prior denial was based on lack of evidence of injuries or complaints in the service treatment records. (Pursuant to 38 U.S.C. § 1154 (b), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. See also 38 C.F.R. § 3.304 (d)). Consequently, the new evidence addresses the bases for the prior denials and constitutes new and material evidence. As new and material evidence has been received to reopen these claims, the claims for entitlement to service connection for a right knee disability, a left knee disability, and a low back disability are reopened. REASONS FOR REMAND Service connection for a right knee disability, a left knee disability, and a low back disability are remanded. The Veteran underwent VA examinations in October 2017. The examiner rendered negative nexus opinions regarding the Veteran's right and left knee disabilities and his back disability. The basis for the negative nexus opinions was largely the examiner's contention that the Veteran has not sought any medical care for the past 12 years (since being discharged from service). The examiner also noted that the Veteran sought and obtained employment as a pentagon police officer, and that "this infers that the Veteran was able to pass a [sic] extensive physical exam to be able to be employed in this setting." The Veteran testified that he never applied to be a Pentagon police officer (which would require a three month long extensive training). He stated that he was a contract security guard which required only a basic physical. Moreover, he stated that this job entailed him being a supervisor, which was largely a desk job. Consequently, it appears that the examiner's rationale was based on erroneous information and assumptions. Additionally, in a June 2018 correspondence, the Veteran explained that after he sought treatment for his right knee injury in 2002 (which is well documented in the service treatment records), he had to "endure tons of extra hazing and beat downs due to this injury." He explained that when he injured his knees and back in 2003, he did not seek treatment because he did not want to endure the additional hazing. Instead, he simply pushed through the pain and hoped that the injuries would improve over time. He stated that he treated the pain with medication, and he "continued on" because he was not combat wounded. He stated that all of his injuries persisted throughout service. This appears to be substantiated by the fact that he filed his initial claims in November 2005 (which was immediately upon being discharged). He stated, in the June 2018 correspondence, that he did not seek VA treatment after service because he was dissatisfied with the January 2006 VA examination (which resulted in the denial of his claims). The Board finds the Veteran's testimony competent. A new VA examination is warranted to address the prior examination deficiencies. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his bilateral knee and low back disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is each disability (right knee, left knee, low back) at least as likely as not related to service, including the right knee pain documented from August 2002 to November 2002, and credible reports of injuries sustained during combat when he jumped out of a truck in March 2003 while wearing the full weight of combat gear. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. In doing so, the examiner must consider the lay statements submitted by the Veteran (from his spouse, brother, neighbors, etc.) as well as the Veteran's own lay statements including his statements regarding not seeking additional in-service treatment because he endured hazing after he initially sought treatment for his right knee injury in 2002. 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 bilateral knee and low back disabilities, this should be noted. [The examiner is not being asked to make a credibility assessment regarding the Veteran's statement about not seeking additional in-service treatment because he endured hazing after he initially sought treatment for his right knee injury in 2002.] (Continued on the next page) Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are 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. Prem, 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.