Citation Nr: 21076111 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-19 012 DATE: December 22, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability or pes planus, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a right knee disability and pes planus, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a right knee disability or pes planus, is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a left knee disability was previously considered and denied in a February 1997 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. A subsequent May 2003 decision determined there was not new and material evidence and, therefore, declined to reopen this claim, and the Veteran did not appeal that decision, either. 3. Additional evidence since received, however, is not cumulative or redundant of the evidence of record at the time of that more recent decision, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. The May 2003 rating decision denying the petition to reopen this claim for service connection for a left knee disability is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. But there is new and material evidence since that decision to reopen this claim. 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 June 1976 to July 1996. This appeal to the Board of Veterans' Appeals (Board) is from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a September 2021 hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, i.e., at a Travel Board hearing. A transcript of the hearing is of record. New and Material Evidence 1. New and material evidence has been received to reopen the claim for service connection for a left knee disability, including as secondary to an already service-connected right knee disability and bilateral pes planus The Veteran's claim for service connection for a left knee disability was originally considered and denied in a February 1997 rating decision. The RO notified him of that decision and of his appellate rights. However, he did not appeal that decision and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that February 1997 decision became final and binding on him based on the evidence of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). The Veteran subsequently attempted to reopen this claim, but his petition was denied in a May 2003 rating decision because the RO determined that he had not submitted new and material evidence concerning this claim. He did not appeal that decision, either, so it, too, became a final and binding determination based on the evidence then of record. Id. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The RO's May 2003 denial of the petition to reopen this claim is the last final and binding denial of this claim and marks the "starting point" for determining whether new and material evidence since has been submitted or otherwise obtained to warrant reopening this claim and readjudicating it on its underlying merits. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (indicating to review for newness and materiality all evidence submitted or otherwise obtained since the last final and binding denial of the claim irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The February 1997 rating decision initially considering and denying this claim for service connection for a left knee disability was based on a finding that there was no then current diagnosis of any left knee disability. And this essentially was the same reason for subsequently declining to reopen this claim in May 2003, when the RO determined there still was no indication of any then current left disability despite the Veteran's complaints of left knee pain during his service and consequent treatment for that pain while in service. In other words, because there continued to be no indication of any left knee disability at the time of that May 2003 decision, the left knee pain he had in service was considered acute and transitory rather than suggestive of "chronic" (meaning permanent or recurring) disability. Evidence since added to the record includes substantial VA treatment records and the transcript of the Veteran's September 2021 hearing testimony before this Board, in addition to other evidence. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence that was at the time of the May 2003 rating decision. This additional evidence also is material in that it relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating it, including notably in terms of at least tending to establish the Veteran has a left knee disability (namely, osteoarthritis). Since this evidence resultantly is both new and material, this claim of entitlement to service connection for a left knee disability is reopened. But rather than immediately readjudicating this claim on its underlying merits, de novo, the Board is first remanding this claim back to the RO because it needs to be further developed. REASONS FOR REMAND 2. Entitlement to service connection for a left knee disability, to include as secondary to right knee disability and/or bilateral pes planus, is remanded. During his September 2021 hearing before this Board, the Veteran testified that he has long suffered from left knee pain, which he attributes to his service-connected right knee disability and/or bilateral pes planus. He further testified that he has been given a left knee diagnosis by VA medical providers. A review of the record shows that, in June 2019, a VA provider diagnosed osteoarthritis of the knees, so left and right. That notwithstanding, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left knee disability, including as secondary to the service-connected right knee disability and/or bilateral pes planus, because no VA examiner has provided an opinion on the etiology of the left knee disability, particularly in terms of whether caused or aggravated by these already determined to be service-connected disabilities. Although the Veteran underwent a VA knee examination in August 2016, the examiner noted that examination was specifically for the Veteran's right knee claim. Consequently, that examiner did not provide any diagnosis referable to the Veteran's left knee, despite observing he had painful motion with reduced range of motion in this other knee. As such, a VA examination is needed for the Veteran's left knee claim to confirm all present diagnoses (e.g., osteoarthrtis, etc.) and for an opinion on the etiology of any confirmed left knee disability including, as mentioned, in relation to any service-connected disability. 3. Entitlement to service connection for a right hip disability, to include as secondary to the right knee disability and/or bilateral pes planus, is remanded. 4. Entitlement to service connection for a left hip disability, to include as secondary to the right knee disability and/or bilateral pes planus, is remanded. Also, during his September 2021 hearing before this Board, the Veteran testified that he has long suffered from bilateral (left and right) hip pain, which he also believes is secondary to (caused or aggravated by) his service-connected right knee disability and/or bilateral pes planus. A March 2017 VA treatment record list a diagnosis of "hip arthritis," however, a later VA treatment record from April 2018 mentions an X-ray showing the Veteran's hips were normal radiographically. Thus, because of this conflicting evidence, the Veteran needs to undergo a VA compensation examination to clarify any current hip diagnoses and so the examiner can then provide an opinion on whether any right or left hip disability is secondary to (again, meaning caused or aggravated by) his service-connected right knee disability and/or bilateral pes planus. Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left knee disability. The examiner is asked to first clarify all diagnoses (e.g., osteoarthritis, etc.). If a diagnosis cannot be confirmed but the Veteran's condition manifests in symptoms (e.g., pain) that cause functional impairment of his earning capacity, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to each the following: A) Is it as likely as not that any left knee disability the Veteran has was caused OR is aggravated by his service-connected right knee disability and/or bilateral pes planus, such as from overcompensating, gait disturbance, etcetera? B) If confirmed the Veteran has arthritis in his left knee, is it as likely as not that it (1) onset during his active military service from June 1976 to July 1996, (2) manifested within one year after his discharge from service so by July 1997, or (3) was noted during service with continuity of the same symptomatology since service or is otherwise related or attributable to his service? 2. Also schedule the Veteran for a VA examination for his right and left hip disabilities. The examiner is asked to first clarify all diagnoses referable to the Veteran's hips. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms (e.g., pain) that cause functional impairment of his earning capacity, 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 each the following: A) Is it as likely as not that any current left and/or right hip disability was caused OR is aggravated by the Veteran's service-connected right knee disability and/or bilateral pes planus, such as from overcompensating, gait disturbance, etcetera? B) If the Veteran's left and/or right hip disability involves arthritis, is it as likely as not that it (1) began during his active military service from June 1976 to July 1996, (2) manifested within one year after his discharge from service - so by July 1997, or (3) was noted during service with continuity of the same symptomatology since service or is otherwise related or attributable to his service? KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.