Citation Nr: 21075345 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-45 718 DATE: December 20, 2021 ORDER Whether new and material evidence has been submitted to reopen the claim for service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a right knee disability, to include as due to service-connected disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as due to service-connected disabilities, is remanded. Entitlement to service connection for varicose veins, to include damaged blood vessels, to include as due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran's claim for a left knee disability was initially denied in a May 2013 rating decision. The evidence generated within one year of that decision was not new and material, nor did the Veteran disagree with that denial. 2. Evidence associated with the claims file since the May 2013 rating decision is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. CONCLUSIONS OF LAW 1. The May 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302. 2. The criteria to reopen the claim of service connection for a left knee disability have been met. 38 U.S.C. § 5103, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board's "One Touch" program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Request to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen any previously denied claims. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that 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). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). 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). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Whether new and material evidence has been received to reopen a claim for a left knee disability A. Finality By way of history, the Veteran's initial claim for entitlement to service connection for a left knee disability was denied in a May 2013 rating decision. In that decision, the RO determined the Veteran's left knee condition neither occurred in nor was caused by service and his service treatment records do not contain complaints, treatment, or diagnosis for this condition. The Veteran was notified of the decision on May 28, 2013, but he did not appeal. However, as some VA medical records later associated with the file are dated within a year of that decision, the Board will consider whether it was new and material evidence. The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156(b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); see also Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156(b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period); see also Lang v. Wilkie, 971 F.3d 1348 (2020) (a VA adjudicator does not need actual knowledge of VA-generated medical records created within one year following a VA decision to establish constructive receipt for the purposes of applying 38 C.F.R. § 3.156(b) because VA has constructive knowledge of these records.). The Veteran had received medical treatment at a VA medical center between May 2013 and May 2014. Those records were not, however, submitted to the file until December 2015 when the Veteran requested to reopen the claim; though, as noted in Lang, this is immaterial as VA has constructive knowledge of these records. Regardless, although new, the medical records are not material, as they did not suggest a link to service. Although the Veteran continued to receive treatment at a VA medical facility, there was no indication of a left knee condition being due to service within a year of the 2013 rating decision, which was the reason the claim was originally denied. No other evidence was received (actually or constructively) within the one-year time period. Therefore, even considering caselaw such as Turner and Lang in every way possibly beneficial to the Veteran, the Board still finds the 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence Thereafter, in November 2015, the Veteran filed a claim for service connection for bilateral knees and varicose veins. In January 2016, the RO issued a rating decision denying the claims, but did not address new and material evidence as to the left knee condition. However, the RO did grant reopening the claim in the August 2018 statement of the case. Nonetheless, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection on the merits. Barnett, 83 F.3d 1380, 1383-1384. After reviewing the evidence associated with the claims file since the last final decision, the Board finds that new and material evidence sufficient to reopen the claim has been received. For example, the Board acknowledges the post-service treatment records show that he first sought treatment for knee pain at the VAMC in 2009 and that in 2015, X-rays show that he has arthritis in the bilateral knees. The Board acknowledges that the threshold for reopening a claim is low. Shade, 24 Vet. App. 110, 118. As the evidence relates to an unestablished fact necessary to substantiate the claim and the evidence is new and material, the claim may be reopened. See 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110. The claim for a left knee condition is granted to this extent only. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran's claims. The Veteran seeks service connection for his bilateral knee conditions and varicose veins. First, the Veteran asserted a podiatrist suggested his knees are related to his service-connected pes planus. Further, he now receives medical services from Tulsa/Muskogee VA beginning in 2021 and was receiving medical services from the Oklahoma City VA, and the records in the file are only through July 2018. Those records must be obtained on remand. Finally, as noted above, the Veteran has asserted that his knees and veins are due to service-connected pes planus. Thus, in light of the Veteran's contentions and the record on appeal, a VA examination and opinion should be obtained to determine the diagnoses and probable etiology of the Veteran's bilateral knees and varicose veins. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Request the Veteran fill out VA Form 21-4142 to obtain his private medical records; including the private podiatrist in Oklahoma City who allegedly told him his conditions are due to pes planus. [If this was a VA podiatrist, those records will be obtained, as noted below.] Document all attempts to obtain them, including all negative responses. If any requested records cannot be obtained, then notify the Veteran and give him an opportunity to provide the records. 2. Obtain VA medical records from Oklahoma City VA from 2018 to present. 3. Obtain VA medical records from Tulsa/Muskogee VA from 2021 to present. 4. DO NOT PROCEED until the above has been completed to the extent possible. 5. Then, only AFTER the above has been completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the knee disabilities and vein disorder, as well as determine all of his current diagnoses. The examiner must review the claims file, to include this remand, and should note that review in the report. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion on whether: (a.) it at least as likely as not (50 percent or greater probability) that the Veteran has any knee disorders that were incurred in or due to any event, disease, or injury during active service? (b.) it at least as likely as not (50 percent or greater probability) that the Veteran has any varicose veins disorders that were incurred in or due to any event, disease, or injury during active service? (c.) If the answer to (a) is negative, then is it at least as likely as not (50 percent or greater probability) that the Veteran has any bilateral knee disorders that are Caused by the service-connected pes planus? Aggravated (worsened) by the service-connected pes planus? (d.) If the answer to (b) is negative, then is it at least as likely as not (50 percent or greater probability) that the Veteran's vein disorders that are Caused by the service-connected pes planus? Aggravated (worsened) by the service-connected pes planus? Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.