Citation Nr: 21070853 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-40 150 DATE: November 26, 2021 ORDER As new and material evidence sufficient to reopen the claim for service connection for a left knee condition has been received, the petition to reopen this claim is granted. REMANDED Entitlement to service connection for a left knee condition, claimed as secondary to service-connected right knee condition and/or low back condition, is remanded. FINDINGS OF FACT 1. An August 2003 rating decision denied service connection for a left knee condition. 2. Although the Veteran initiated an appeal of the August 2003 rating decision as to its denial of service connection for a left knee condition, he did not perfect that appeal by filing a timely substantive appeal following the issuance of a February 2004 statement of the case (SOC); therefore, the August 2003 rating decision is final. 3. Evidence received since the August 2003 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for a left knee condition. CONCLUSIONS OF LAW 1. The August 2003 rating decision that denied entitlement to service connection for a left knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.202, 20.1103. 2. Evidence received since the August 2003 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from March 1980 to January 1986. This case comes before the Board of Veterans Appeals from a May 2015 rating decision by the Department of Veterans Affair (VA) Regional Office (RO). The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. 1. Whether new and material evidence has been received to reopen the claim for a left knee condition, claimed as secondary to service-connected right knee and/or low back condition A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In August 2003, the RO denied service connection for a left knee disability based essentially on findings that there was no evidence to show a chronic left knee condition during military service nor any current medical evidence to show his claimed residuals of left knee injury was related to military service. It was noted that the Veteran's service treatment records were silent for any diagnosis of a left knee condition, and there was no documented left knee injury during service. Evidence received subsequent to the August 2003 rating decision includes VA examinations dated April 2015, June 2016 and April 2021 as well as the Veteran's October 2021 hearing testimony before the Board, wherein he indicated that he had no problems with his left knee prior to his service-connected right knee issues. He further claimed that his left knee now hurt worse because of all the overcompensating that he did because of his right knee. He explained he was a carpenter by trade and every day walked on uneven ground; he also noted that he had to go up and down ladders and had gait issues as a result of his right knee. Additionally, he specified he was claiming his left knee solely as a secondary issue to his right knee and low back, and not as a direct claim. In light of the low threshold for establishing new and material evidence, and because statements are presumed credible for the purposes of reopening, the Board finds that this evidence relates to an unestablished fact necessary to substantiate the Veteran's claims. More specifically, the evidence obtained since the last final denial bears directly on the nexus element for his left knee claim by specifically negating the need for a direct nexus to service and instead requiring a nexus to a service-connected disability, as the Veteran is now claiming service connection for the left knee as secondary to his service-connected right knee and low back. The new evidence in the form of the Veteran's hearing testimony further supports this secondary approach to service connection by explaining how he believes these service-connected conditions led to his claimed left knee condition, thus creating a reasonable possibility of substantiating the claim. As such, the Board finds that new and material has been presented with respect to the claim, and it is reopened. REASON FOR REMAND 1. Entitlement to service connection for a left knee condition, claimed as secondary to a service-connected right knee and/or low back condition is remanded. The Veteran claims his left knee condition is secondary to his service-connected right knee and/or low back conditions. See August 2016 Form 9; October 2021 Board hearing testimony. In April 2015, a VA examiner examined the Veteran and opined that his left knee disability was less likely than not proximately due to or the result of his service-connected right knee because there was nothing in the currently available medical literature to support the claim. In June 2016, a VA examiner also examined the Veteran and similarly opined that his left knee disability was less likely than not proximately due to or the result of the service-connected right knee. The examiner explained that according to medical literature, the risk factors for degenerative joint disease (DJD) were aging, genetics, overweight, previous fractures or injuries to the specific joint, and repetitive activities to the damaged joint such as squatting or twisting. The examiner further stated that medical literature did not support a finding that DJD in one joint would cause DJD in another joint, either directly or due to favoring the unaffected joint because of pain in the injured joint. Instead, the examiner found the Veteran's left knee to be most likely secondary to overuse over the years. Although both the April 2015 VA examiner and July 2016 VA examiner addressed the question of causation, they did not address whether the Veteran's service-connected right knee disability may have aggravated the left knee disability. The examiners also only addressed the question of whether there was a causal relationship between the Veteran's left and right knees, and did not address whether the left knee may be related to his service-connected lumbar spine disability. Finally, to the extent the June 2016 VA examiner appears to acknowledge that overuse and repetitive action can be causes of DJD, the examiner's opinion does not adequately address the Veteran's contention that because of his service-connected right knee disability, he has to rely more on his left knee. At the October 2021 Board hearing, the Veteran testified that prior to having right knee issues, he had no problem with his left knee, and that his left knee now hurt because of the overcompensating he did for his right knee by relying on the left in his work as a carpenter. He also stated he had gait issues that he attributed to his service-connected back disability which further exacerbated his left knee condition. Given the foregoing, the Board finds that remand is necessary for a new VA medical opinion that properly addresses the Veteran's secondary causation and aggravation claim as it relates to his service-connected left knee. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination regarding his left knee condition. The examiner must review the claims file. The examiner is asked to provide a response to the following and include a rationale for all opinions expressed: (a.) Is the Veteran's left knee condition at least as likely as not proximately due to or the result of his service-connected right knee condition? (b.) Is the Veteran's left knee condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right knee condition? (c.) Is the Veteran's left knee condition at least as likely as not proximately due to or the result of his service-connected low back condition? (d.) Is the Veteran's left knee condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected low back condition? A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, Angela L. 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.