Citation Nr: 21071795 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-19 143 DATE: December 1, 2021 ORDER New and material evidence having been submitted, the request to reopen the claim for entitlement to service connection for a right knee disorder to include arthritis is granted. REMANDED Entitlement to service connection for a right knee disorder to include arthritis is remanded. FINDINGS OF FACT 1. A November 2009 rating decision denied the Veteran's application to reopen a claim for service connection for a right knee disorder. 2. The Veteran did not appeal the November 2009 denial of his claim to reopen and it became final. 3. Evidence received since the last final denial raises a reasonable possibility of substantiating the claim to establish service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The November 2009 rating decision is final with respect to the Veteran's claim to establish service connection for a right knee disorder to include arthritis. 2. Since the November 2009 rating decision, new and material evidence has been submitted and the Veteran's claim for entitlement to service connection for a right knee disorder diagnosed as arthritis is reopened. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to May 1971, including service in the Republic of Vietnam from July 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA), the agency of original jurisdiction (AOJ). The Veteran was scheduled to attend a virtual hearing on October 13, 2021, but the record reflects that he failed to appear. The notification of the hearing was sent to the last known address for the Veteran. The Veteran has an obligation to provide any change of address. As the Veteran did not appear for the hearing after notice of such was provided to his last known, and verified, address, the Board will proceed with his appeal. 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right knee disorder to include arthritis New and Material Evidence The Veteran contends that the has submitted new and material evidence to reopen his claim. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The RO denied the Veteran's claim for a right knee condition in February 2007. The RO found that although there is a record of treatment in service for a right knee condition, and that no permanent residual or chronic disability subject to service connection is shown by the service treatment records or immediately after discharge. The Veteran was notified of the decision in February 2007. The decision became final by the expiration of 1 year after the date of notice. 38 C.F.R. § 3.160(d)} 38 C.F.R. § 3.160(d). Thereafter, an application to reopen the claim was filed in August 2009 and was denied on the basis that while recent treatment records had been submitted, those records were not sufficient to show that the Veteran's right knee arthritis was related to service, and thus, the RO denied the request to reopen the claim. The Board finds that because the basis of the RO's unwillingness to reopen was unduly narrow (the RO essentially found that nexus evidence was necessary to reopen the claim whereas the claim had also been denied on the basis of the lack of evidence of a chronic disability), the Board finds that subsequent evidence of a chronic disorder and/or nexus evidence would be sufficient to reopen the claim. The Veteran subsequently sought to reopen his claim for a right knee disorder, which was initially denied in August 2013, and again within one year thereafter, in January 2014, following which this appeal ensued. Regardless of any Regional Office determinations regarding whether new and material evidence has been submitted to reopen service connection, the Board must determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Subsequent to the last final rating decision in November 2009, additional medical evidence was associated with the file demonstrating that after the Veteran's documented treatment for right knee arthritis, he underwent right knee replacement surgery in September 2012. The Board notes that the Veteran's representative submitted a brief in November 2021, indicating the submission of private treatment records received in August 2013, dating from March 2004 to August 2013. The Veteran has also provided more specific details as to why he believes that his current right knee disability is related to service. The Board finds this evidence is new in that it was not of record at the time of the last final rating decision, and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for a right knee disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder to include arthritis is remanded. The Veteran asserts that his current right knee disability is related to events occurring during service. A June 1970 service treatment record notes the Veteran reported "bad knees" and complained of pain in both knees. Service treatment records dated March 27, 1971, note that the Veteran presented to the dispensary for a gunshot wound to his legs, stating that he was shot between the legs. Superficial abrasions of right medial thigh and a 1 12 inch open wound on left medical thigh extending into subcutaneous tissue were noted. The wounds were cleaned and dressed. A March 1971 Evac Hospital record indicates that the Veteran fell in a grease pit; an examination was requested. At a VA examination for scars related to his in-service gunshot wounds that took place in July 1972, the Veteran reported that in addition to the gunshot wounds, he sustained lacerations of both knees due to a fall into a grease pit and that his right knee still ached at times. An August 1972 rating decision granted service connection for scars with a noncompensable evaluation. The Board notes that the Veteran did not appear for a scheduled knee and lower legs VA examination in September 2016. There is no documentation in the record that the Veteran received notice of the scheduled examination. There is no documentation in the file that the Veteran was contacted afterward. Significantly, it does not appear that the Veteran has undergone a VA examination for his right knee disability; the only VA examinations in the record are for residual scars of an in-service gunshot wound. There are no medical opinions in the record. In sum, the Veteran has a current diagnosis, which has been established to meet the first element of service connection. An in-service event has also been established to meet the second element of service connection. As to the final element of service connection, a nexus between the Veteran's right knee disorder and active service, the Board notes that there is no medical examination or medical nexus opinion of record. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As to the first element, VA and private medical records show evidence of a current disability. As to the second element, service treatment records note a gunshot wound and a fall into a grease pit. As to the nexus element, there is an indication that the Veteran's right knee disorder is related to service. In April 2017, the Veteran stated that his right knee disorder is the result of military training and job requirements while on active duty and a result of a gunshot wound to his thighs which altered his normal walking stride and caused extra stress on his knees. The Veteran has therefore competently and credibly stated that he injured his knee during service and experienced pain continuing since that time. Finally, as there is no VA examination of record, there is insufficient evidence to make a decision on the claim. Accordingly, the Board finds that the Veteran's claims for a right knee disorder to include arthritis meet the McLendon criteria and his claim must be remanded for a VA examination and etiological opinion. The matters are REMANDED for the following action: Provide an examination to determine the nature and etiology of the Veteran's right knee disorder to include arthritis. The examiner should provide an opinion addressing whether it is at least as likely as not that the Veteran's right knee disorder, to include arthritis, had its onset during service or is otherwise related to service. The examiner must address the Veteran's gunshot wound and fall into a grease pit that are documented in service treatment records. The examiner must also address the Veteran's lay statements. All opinions must provide a complete rationale. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.