Citation Nr: 21077134 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-03 274 DATE: December 28, 2021 ORDER The petition to reopen the issue of entitlement to service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to an evaluation greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable evaluation for a bilateral hearing loss disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1.The November 2004 rating decision denied the claim of service connection for a bilateral knee disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of notice of decision. 2.The evidence received since the November 2004 rating decision is neither cumulative nor repetitive of facts that were previously considered. CONCLUSIONS OF LAW 1.The November 2004 rating decision that denied service connection for a bilateral knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103. 2.The evidence received since the November 2004 rating decision is new and material for the purpose of reopening the claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters are on appeal from March 2014 rating decisions. The Veteran had active service in the United States Army from July 1991 to February 1992 and from October 2000 to January 2004. In July 2021, the Veteran testified that his PTSD prevented him from securing substantially gainful employment. The Board has added the issue of entitlement to a TDIU to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). A transcript of the July 2021 hearing is associated with the record. 1. Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for a bilateral knee disability. The claim of entitlement to service connection for a bilateral knee disability was previously considered and denied in a November 2004 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. A review of the record reflects that the Veteran did not submit any additional evidence within one year of the rating decision. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). As such, the claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior decision, the record included the claim and the service records. In essence, at the time of the prior decision, there was no accepted evidence that the Veteran had a current bilateral knee disability. The evidence received since the November 2004 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The Veteran's VA treatment records include a diagnosis of unspecified internal derangement of the knee. This new evidence addresses the reasons for the previous denials; that is, the absence of a current disability. The credibility of this evidence is presumed for the purpose of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip condition is remanded. 2. Entitlement to service connection for a bilateral knee condition is remanded. The Veteran has not been afforded a VA examination to determine the nature and etiology of his bilateral hip and knee disabilities. His VA treatment records include complaints of bilateral hip and knee pain. The Veteran testified that his bilateral hip and knee conditions were caused by his in-service parachute jumps and repairing vehicles. In July 2021, the Veteran submitted an article discussing arthritis in the Veteran population due to repetitive joint motions and load bearing activities. Furthermore, the December 2021 brief discusses in-service exposure to chronic exposure to microtrauma that result in cumulative trauma disorders as the cause of the Veteran's bilateral hip and knee conditions. The Veteran's representative cited to medical literature to support this premise. A remand is required to afford the Veteran a VA examination to determine the and etiology of his bilateral hip and knee conditions. 3. Entitlement to an evaluation greater than 30 percent for PTSD is remanded. 4. Entitlement to a compensable evaluation for a bilateral hearing loss disability is remanded. The Veteran underwent his most recent bilateral hearing loss examination in February 2014. His most recent PTSD examination was conducted in February 2011. In July 2021, the Veteran testified that his bilateral hearing loss disability and PTSD have increased in severity since his most recent VA examinations. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his bilateral hearing loss disability and PTSD. 5. Entitlement to a TDIU is remanded. Finally, the Veteran has not been provided with adequate notice of the requirements to substantiate a TDIU and the Agency of Original Jurisdiction has not adjudicated the claim. Furthermore, a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a TDIU claim form and provide him with notice of the requirements to substantiate a claim for a TDIU. 2. Schedule the Veteran for a VA examination for his bilateral hip and bilateral knee 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 opinions below. The examiner is asked to provide a response to the following: Is the Veteran's bilateral knee disability at least as likely as not related to service, including his in-service parachute jumps and work as a mechanic during active service? Is the Veteran's bilateral hip disability at least as likely as not related to service, including his in-service parachute jumps and work as a mechanic during active service? In rendering the opinion, the VA examiner is asked to address the article that was submitted in July 2021 and the medical literature cited by the Veteran's representative in the December 2021 brief. Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. 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 disabilities, this should be noted. 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? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.