Citation Nr: 21006396 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-00 126A DATE: February 4, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for left knee disability. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to an increased rating for arthritis of the right knee, status-post knee replacement is remanded. FINDING OF FACT 1. The Veteran did not appeal the June 2014 rating decision that denied service connection for left knee disability; this decision became final. 2. The evidence received since the final June 2014 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for left knee disability. CONCLUSION OF LAW 1. The June 2014 rating decision denying the Veteran’s claim of entitlement to service connection for left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to June 1982. This matter comes before the Board of Veterans’ Appeals (Board) from March 2015 and November 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in June 2020. A transcript of the proceeding is of record. New and Material Evidence A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board’s task is to first decide whether new and material evidence has been received, as opposed to whether the evidence substantiates the Veteran’s claim. New and material evidence has been received to reopen the claim of service connection for left knee disability The Veteran’s claim of entitlement to service connection for left knee disability was denied in a June 2014 rating decision on the basis that the evidence of record failed to show the disability was related to service. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. 38 C.F.R. § 3.156(b), (c). Accordingly, the June 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that there is sufficient evidentiary basis to reopen the claim of entitlement to service connection for left knee disability. New evidence received since the last final denial includes updated VA treatment records, the November 2017 VA examination, and the Veteran’s testimony at the June 2020 Board hearing. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran’s claims. Accordingly, as new and material evidence has been received, the Board finds that the claim of service connection for left knee disability is reopened. However, the Board finds that additional evidentiary development is required for the left knee disability claim, as discussed in the Remand portion of the decision below. REASONS FOR REMAND 1. Entitlement to service connection for left knee disability is remanded. The Veteran contends that his left knee disability was incurred in service after he injured it during exercises. Alternatively, he contends his left knee disability is due to his service-connected right knee arthritis. The Veteran has a current disability of left knee osteoarthritis as shown by July 2013 VA treatment records. Service treatment records (STRs) indicate a diagnosis of left knee chondromalacia but note the records were lost. STRs further indicate that the Veteran reported left knee pain in January 1980. Entrance and separation examinations were normal for a left knee condition. The Veteran was afforded VA examinations in May 2014 and November 2017. However, another examination is required to consider the Veteran’s reports of an injury to the left knee in service, as well as any impact the recent right knee replacement has had on the left knee condition. Additionally, based on the Veteran’s testimony at the June 2020 Board hearing, it appears there are outstanding private treatment records regarding the left knee condition. The RO shall attempt to obtain those records upon remand. 2. Entitlement to an increased rating for arthritis of the right knee, status-post knee replacement is remanded. The Veteran is rated under Diagnostic Code 5260 for limitation of flexion of the leg as 10 percent disabled from December 18, 2013, 100 percent disabled from April 2, 2018, and 30 percent disabled from June 1, 2019. The Veteran underwent a total knee replacement of the right knee on April 2, 2018; however, he has not been examined to determine the current severity of the right knee after his knee replacement. Accordingly, an examination is required to determine the current manifestations and severity of his right knee disability. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and any representative. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee arthritis, status-post total knee replacement. 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. 3. After completion of directives #1 and #2, schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is left knee arthritis at least as likely as not related to service, including left knee chondromalacia? (b.) Is left knee arthritis at least as likely as not proximately due to service-connected right knee arthritis, status-post total knee replacement? (c.) Is left knee arthritis at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected right knee arthritis, status-post total knee replacement? The examiner’s attention is drawn to November 1979 and January 1980 service treatment records indicating treatment for left knee chondromalacia. (Continued on the next page)   In providing the requested opinions, consider the Veteran’s description of his in-service injury 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 disability, this should be noted. Provide a complete rationale to support the opinions. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.