Citation Nr: A21020630 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 190517-41125 DATE: December 29, 2021 ORDER Readjudication of the previously denied claim for service connection for a left knee disability is warranted; to this limited extent, the appeal of that issue is granted. Readjudication of the previously denied claim for service connection for a right knee disability, to include as secondary to a left knee disability, is warranted; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In a March 2014 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for disabilities of both knees; the Veteran filed a notice of disagreement (NOD) with that decision, and he was issued a statement of the case (SOC), but the RO closed his appeal for failure to thereafter file a timely substantive appeal. 2. Evidence that was not part of the actual record before the RO at the time of the March 2014 decision tends to prove or disprove a matter at issue in the Veteran's claims. CONCLUSIONS OF LAW 1. New and relevant evidence has been received as to the Veteran's claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 2. New and relevant evidence has been received as to the Veteran's claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1958 to March 1960. This matter arises from a November 2016 rating decision issued by a VARO. The RO determined, in pertinent part, that new and material evidence had not been received to warrant reopening of previously denied claims for service connection for disabilities of the knees. The Veteran submitted a legacy NOD in December 2016, and he was furnished a SOC in May 2019. The Appeals Modernization Act (AMA) allows VA claimants to opt into the modernized review system by requesting review of a SOC or supplemental SOC (SSOC) issued on or after February 19, 2019, if the opt-in is received within one year of the date of the notification of the underlying rating decision, or 60 days from the issuance of the SOC/SSOC, whichever is later. Here, the Veteran elected to appeal to the Board via the modernized appeal system in May 2019, after receiving the May 2019 SOC. See May 2019 See VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). He requested the hearing review option. 38 C.F.R. §§ 20.201, 20.202(b)(2). In August 2020, the Veteran testified at a virtual Board hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. Under the AMA, the Veteran had 90 days from the date of the August 2020 hearing to submit additional evidence. 1. Readjudication of the previously denied claim for service connection for a left knee disability is warranted. 2. Readjudication of the previously denied claim for service connection for a right knee disability, to include as secondary to a left knee disability, is warranted. The "new and material" evidence issues regarding the Veteran's knees have been recharacterized to reflect the applicable evidentiary (new and relevant) standard under the AMA. 38 C.F.R. § 3.156(d). Under the AMA, in order to readjudicate a claim which has been previously considered, a claimant must present new and relevant evidence. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). In the present case, a RO denied the Veteran's claim for service connection for disabilities of both knees in March 2014. The RO found, in essence, that the evidence supported a finding that the left knee disability existed prior to service and was not aggravated thereby. The RO relied, in part, on a February 2014 VA medical opinion that found that the Veteran had injured his left knee in 1955 (prior to service) while playing high school sports. The RO also found no link between the Veteran's right knee disability and service. Furthermore, as the left knee disability was not related service, service connection for a right knee disability as secondary to the left knee disability could not be established. After the March 2014 rating decision, the Veteran submitted, among other things, his own statement, and statements from two acquaintances, that called into question the prior finding with respect to the fact that he injured his left knee prior to service. See April, May, and June 2014 correspondence. The evidence received since the time of the March 2014 rating decision is new as it was not previously of record. It is also relevant because it tends to prove or disprove a matter at issue in the claim; namely, that the left knee condition existed prior to service. Because new and relevant evidence has been received, readjudication of the previously denied claims is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. Because the AOJ found that new and material evidence had not been received to reopen the previously denied claims for service connection for disabilities of the knees, it did not reach the merits of those claims. To avoid any possibility of prejudice to the Veteran, a remand for AOJ consideration of the merits of the claims, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These matters are REMANDED for the following action: After undertaking any additional development deemed necessary, adjudicate the merits of the Veteran's claims of entitlement to service connection for left and right knee disabilities, taking into account the totality of the evidence. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.