Citation Nr: 21005738 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-53 039 DATE: February 2, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a right knee disability is granted. REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome is remanded. Entitlement to service connection for a right knee disability, including as secondary to a service-connected left knee disability, is remanded. FINDINGS OF FACT 1. In a May 2013 rating decision, the Regional Office (RO) denied service connection for a right knee disability. The Veteran did not file a notice of disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence received since the May 2013 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for a right knee disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a right knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from July 1979 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and June 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2014 rating decision, the RO continued the 20 percent disability rating for the lumbar spine disability. In the June 2015 rating decision, the RO continued the previous denial of service connection for a right knee disability. Although a notice of disagreement of disagreement was not received until November 2016, corresponding to a later June 2016 denial, the Board finds that new and material evidence was added to the record within a year of the issuance of the June 2015 decision, and thus it did not become final. 38 C.F.R. § 3.156(b). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2020. A copy of the transcript has been reviewed and associated with the claims file. Whether new and material evidence has been received to reopen the claim of service connection for a right knee disability. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108.  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. 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.  The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992).  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, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.  In the present case, the RO denied service connection for a right knee disability in a May 2013 rating decision because there was no evidence that his right knee disability was related to service and/or his service-connected left knee disability. The evidence of record at the time of the May 2013 rating decision consisted of the claim form, service treatment records, military personnel records, treatment records, and an April 2013 VA examination. Since the May 2013 rating decision, additional treatment records, statements from the Veteran and his friend, and hearing testimony in November 2020 have been obtained and associated with the claims file. The Board finds that new and material evidence has been received to reopen the claim of service connection for the Veteran’s right knee disability. The evidence is new, as it was not part of the record at the time of the May 2013 rating decision. It is also material, given that it relates to unestablished facts necessary to substantiate the claim. Specifically, the additional medical records reveal additional right knee disabilities. Moreover, the hearing testimony and statements from the Veteran and his friend indicate that his service-connected left knee disability changed his posture and gait and caused and/or aggravated his right knee disability. Accordingly, the evidence is new and material and the claim of service connection for a right knee disability is reopened. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome is remanded. The appellate process set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or in a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31(b). In the present claim, a statement of the case (SOC) was issued in August 2016. However, additional VA treatment records were associated with the claims file from 2016 to March 2020. Furthermore, a VA examination was performed in August 2020 to assess the severity of the Veteran’s service-connected lumbar spine disability. However, the AOJ did not prepare a supplemental statement of the case (SSOC) considering this newly VA generated evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the additional VA treatment records and any other relevant evidence received since the SOC. See Id.; 38 C.F.R. § 20.1305(c). 2. Entitlement to service connection for a right knee disability, including as secondary to a service-connected left knee disability is remanded. The Veteran has been diagnosed with right knee osteoarthritis. Furthermore, an August 2015 MRI revealed posterior horn medial meniscal tear and Grade IV chondromalacia. The Veteran’s service-treatment records reveal crepitus of both knees. He testified at the hearing in November 2020 and submitted a statement in October 2015 and a friend statement in September 2020, which all indicated that his service-connected left knee disability, including his gait dysfunction, caused him to put more weight on his right knee and he has noticed increased pain throughout the years. A VA examiner in April 2013 concluded that his degenerative changes of his right knee were due to normal wear and tear and was not caused by his service-connected left knee disability. After a review of the evidence, the Board finds that the April 2013 examination is insufficient to determine the present claim. In this regard, additional knee disabilities have arisen since the April 2013 VA examination. Moreover, there is no opinion of record indicating whether his right knee disability is directly related to service and/or aggravated by his service-connected left knee disability. Accordingly, the Board finds that a new VA examination is warranted on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from March 2020 to the present. 2. After completion of #1, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his right knee disability. The claims file, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner must identify any right knee disability found on examination and identified during the pendency of this claim and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right knee disability had its onset in and/or is otherwise related to his period of active service? B. For any right knee disability, is it at least as likely as not (probability of at least 50 percent) that it was caused by his service-connected left knee disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right knee disability has been aggravated (any incremental increase in disability) as a result of his service-connected left knee disability? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and right knee disability that shows a baseline of his right knee disability prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each opinion provided. The examiner must discuss the Veteran’s service-treatment records indicating right knee crepitus and the statements and hearing testimony contained in the file indicating that his left knee disability caused an irregular gait and forced him to put more weight on his right knee. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record. 3. Thereafter, readjudicate the issues on appeal, to include consideration of the additional VA examination reports and treatment records. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.