Citation Nr: 21021879 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-32 718 DATE: April 14, 2021 ORDER The claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is remanded. FINDINGS OF FACT 1. A November 1999 Board decision denied service connection for a left knee disability. The decision was mailed to the Veteran on November 9, 1999. 2. The evidence received since November 1999, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. CONCLUSIONS OF LAW 1. The November 1999 Board decision, which denied the Veteran’s claim of entitlement to service connection for a left knee disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 2. The evidence received since the November 1999 Board decision is new and material, and the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1975 to March 1976. This matter originally came before the Board on appeal from an August 2012 Regional Office (RO) rating decision. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. The Board previously remanded this case in December 2017, August 2019, and September 2020 for additional development. The Board notes that the December 2020 supplemental statement of the case reopened the claim of entitlement to service connection for a left knee disability, finding that new and material evidence was presented. However, in any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). New and material evidence has been presented, and the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is reopened. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a) (2018). 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. Id.  New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id.   For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Id. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18.   The November 1999 Board decision denied the Veteran’s claim. As such, the decision became final the date it was mailed to the Veteran on November 9, 1999. The Veteran filed his claim to reopen in November 2011. Since the November 1999 Board decision, the Veteran’s lay statements, private treatment records and opinions, VA treatment records, and a VA examination were added to the claims file. These are new in that they were not of record at the time of the prior decision. They are material because they relate the Veteran’s current left knee disability to his service-connected right knee disabilities. This raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is reopened. REASONS FOR REMAND Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007).  A VA examiner must consider the Veteran’s lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40. A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran was afforded a VA examination in December 2020. The examiner diagnosed the Veteran with osteoarthritis of the left knee. Additionally, the examiner opined it was less likely than not that the Veteran’s left knee condition is related to service, or caused or aggravated by a service connected right knee condition. However, the examiner based her opinion for direct service connection on the incorrect assumption that the Veteran did not have any in-service complaints for his left knee. On April 9, 1975, the Veteran’s service treatment records note a complaint for both knees. As to aggravation, the examiner’s only rationale was that the “medical evidence is not sufficient to support a determination.” The Board finds that the opinion on whether the Veteran’s left knee condition was aggravated by a service-connected right knee disability is too conclusory for the Board to determine the basis for the opinion or how the opinion was informed. Additionally, the examiner failed to consider and address the Veteran’s lay statements in her opinions. At his September 2016 hearing, the Veteran testified that he injured both knees in service, and that his left knee has progressively worsened since his injury. Therefore, the Board finds the December 2020 examination inadequate, and that a new opinion is necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes the Veteran has requested the VA provide an opinion from a non-VA examiner but as the medical question presented in this case does not involve a matter of “medical complexity or controversy” as contemplated in 38 U.S.C. § 5109, such an opinion is not warranted. The Veteran can obtain a private opinion and submit it as evidence if he so desires. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Obtain an addendum opinion for the Veteran’s left knee disability. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should provide opinions that respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability is related to an in-service event, injury, or disease, to include his knee complaints in April 1975? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability is caused by one of his service-connected right knee disabilities? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability is aggravated by one of his service-connected right knee disabilities? (Aggravation here means the disability increased in severity beyond its natural progression.) The examiner must consider and address the Veteran’s service treatment records from April 9, 1975, wherein the Veteran reported issues with both knees, and the Veteran’s lay testimony at his September 2016 hearing that his left knee has progressively worsened since his injury in service. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Papacalos, 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.