Citation Nr: 21008364 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-15 856 DATE: February 16, 2021 ORDER New and material evidence having been received, the request to reopen a claim for entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to a rating greater than 10 percent for a left knee disability is remanded. Entitlement to service connection for a right knee disability, to include as due to a left knee disability is remanded. Entitlement to service connection for a back disability, to include as due to a left knee disability is remanded. FINDINGS OF FACT 1. A September 2003 rating decision denied the Veteran’s service connection claim for a right knee disability. The Veteran did not submit additional evidence or appeal that decision. Thus, the September 2003 rating decision became final. 2. The evidence added to the record since the September 2003 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. CONCLUSIONS OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1996 to August 1999. The Board notes that the April 2014 Statement of The Case (SOC) included the issue of reopening the claim for service connection for the Veteran’s back disability. However, the record reflects that the October 2009 and March 2010 back disability rating decisions were not final, as the Veteran filed a timely Notice of Disagreement (NOD) in March 2011. Thus, the only issue on appeal from a decision that became final and requires a Board determination as to whether new and material evidence was received to reopen the claim is the issue of service connection for a right knee disability. New and Material Evidence Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disability. The Veteran’s claim for service connection for a right knee disability was denied by the AOJ in a September 2003 rating decision, because there was no evidence linking the Veteran’s right knee disability or to her service. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. The question before the Board is whether new and material evidence has been submitted to reopen the claims. The Board finds that there has, and the claim should be reopened. Since the September 2003 rating decision, the Veteran added a May 2009 private medical opinion in July 2009 suggesting there may be a link in between the Veteran’s back and right knee disabilities to her service-connected left knee disability. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the claims. The September 2003 denial was based on the no evidence linking the Veteran’s right knee disability to her service. The evidence submitted is neither cumulative nor redundant of the evidence of record at the time of the September 2003 rating decision and raises a reasonable possibility of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 110. The right knee disability claim is remanded. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for a left knee disability is remanded. The Board is unable to make an informed decision on the claim for an increased rating for the left knee, because the previous examination is over 10 years old. In effort to assess the current severity of the Veteran’s service-connected knee disability a new examination is warranted. 2. Entitlement to service connection for a right knee disability, to include as due to a left knee disability is remanded. 3. Entitlement to service connection for a back disability, to include as due to a left knee disability is remanded. The Board is unable to make an informed decision on the issues of a right knee and back disabilities, because the September 2009 VA examination is inadequate. The September 2009 VA examiner did not provide adequate rationale as to why the Veteran’s right knee and back disabilities are not causally related to service. Furthermore, the examiner did not address aggravation to the right knee and back disabilities by the Veteran’s service-connected left knee disability. On remand new VA examinations for the Veteran’s right knee and back disabilities need to be scheduled. These matters are REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination to assess the severity of her service-connected left knee disability. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. 2. Schedule the Veteran for a VA examination to determine service connection for her right knee disability. Forward the claims file and copies of all pertinent records to the VA examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right knee disability was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee disability is proximately due to (caused by) the Veteran’s service-connected left knee disability? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee disability has been aggravated by the Veteran’s service OR service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for a VA examination to determine service connection for her back disability. Forward the claims file and copies of all pertinent records to the VA examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed back disability was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed back disability is proximately due to (caused by) the Veteran’s service-connected left knee disability? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed back disability has been aggravated by the Veteran’s service OR service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.