Citation Nr: 21027612 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 19-24 201 DATE: May 6, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for a lower back condition is granted. New and material evidence having been received, the petition to reopen the claim for a left knee condition is granted. New and material evidence having been received, the petition to reopen the claim for a right knee condition is granted. Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a lower back condition is remanded. FINDINGS OF FACT 1. Evidence received since the September 2013 rating decision is not duplicative or cumulative of evidence previously of record, and it raises a reasonable possibility of substantiating the Veteran's claim of service connection for a lower back condition. 2. Evidence received since the September 2016 rating decision is not duplicative or cumulative of evidence previously of record, and it raises a reasonable possibility of substantiating the Veteran's claim of service connection for a left knee condition. 3. Evidence received since the September 2016 rating decision is not duplicative or cumulative of evidence previously of record, and it raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right knee condition. 4. The Veteran's current left and right knee disabilities are at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for a lower back condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening the claim for service connection for a left knee condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for reopening the claim for service connection for a right knee condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 5. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1956 to August 1959. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. New and material evidence having been received, the petition to reopen the claim for a lower back condition is granted. 2. New and material evidence having been received, the petition to reopen the claim for a left knee condition is granted. 3. New and material evidence having been received, the petition to reopen the claim for a right knee condition is granted. When a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5018; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239. The Board is required to address petitions to reopen previously denied claims on the basis of new and material evidence in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the Agency of Original Jurisdiction (AOJ) may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed in the following decision to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA. Material evidence is defined as existing 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 prior 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 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran's claims for service connection for his lower back condition and bilateral knee conditions were finally denied by a rating decision in September 2013. The Veteran did not appeal or otherwise pursue that decision within the statutory timeframe, and the decision became final. In September 2016, the Veteran's bilateral knee claims (but not his back claim) were again denied for a lack of new and material evidence. The Veteran attempted to appeal the September 2016 rating decision, but his notice of disagreement was not filed within the statutory timeframe, and the September 2016 denial became final. In June 2018, the Veteran submitted a new VA Form 21-526 EZ, again claiming service connection for his bilateral knee conditions and his lower back condition. New evidence submitted in support of this claim includes updated medical records, additional lay statements by the Veteran, a statement from the Veteran's ex-wife, a letter from the Veteran's private doctor supporting a link between his present knee conditions and military service, photographs, and the Veteran's sworn testimony before the Board. The evidence is material in that it presents a more complete picture of the circumstances surrounding the disability, and raises a reasonable possibility of substantiating these issues, to include with consideration of VA's duty assist. See Hodge, 155 F.3d at 1363; Shade, 24 Vet. App. at 117. The Veteran's service records, including his service medical records, were destroyed in a 1973 fire at the National Personnel Records Center storage facility. See letter from National Archives and Records Administration, within May 2016 Military Personnel Record. The only medical record associated with the claim file is a copy of the Veteran's discharge examination in 1959 which indicates the Veteran did not then report any ongoing knee or back conditions. However, the Veteran has testified that he did not report any ongoing problems because he was told doing so would delay his discharge from the Army. See April 2021 Hearing Transcript. The Board finds that new and material evidence has been submitted which is sufficient to reopen the Veteran's claims for service connection for his left knee, right knee, and lower back conditions. Accordingly, the petition to reopen these issues is granted. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The competent medical evidence shows that the Veteran has had bilateral knee replacement surgeries and had arthritis of both knees. 6/23/2016 CAPRI, at 137; 1/30/2104 Medical Treatment Record Non-Gov't Facility, at 1. As such, the competent evidence support a current bilateral knee disability. Regarding an in-service event/injury, as noted above the Veteran's service records are largely unavailable due a fire. However, the Veteran has provided competent testimony regarding his in-service duties, to include climbing of poles and trees and wearing climber straps. The Veteran testified that he did not tell doctors, but he did take asprin for his pain. The Board finds an in-service injury is supported by the evidence, to include being consistent with his duties as a telephone installer and repairman. 38 U.S.C. § 1154(a). Post-service evidence includes a statement from the Veteran's ex-wife indicating that the Veteran had knee pain since they met in 1964. The Veteran testified that an electric company would not hire in him 1959 because of his knees. He states he took a job where he could sit. He added that the pain in his knees did not go away and that they would give out. Regarding a nexus to service, the Veteran's medical doctor, G.L., MD, stated in a November 2018 letter that it is more likely than not that the Veteran's knee arthritis is related to his multiple falls while in the military and lead to his knee replacement surgery. Dr. G.L. indicated that the Veteran has been a patient of his since 1984 and he noted the Veteran's military service, to include his duties of claiming telephone poles and tress and falling multiple time with one resulting in a hospital admission. In sum, the competent and probative evidence supports all three element of service. As such, service connection is warranted for a bilateral knee disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a lower back condition is remanded. The Veteran show current low back related diagnoses, to include lumbosacral spondylosis, disc degeneration, and myofascial pain syndrome. See 9/24/2013 CAPRI, at 23. He testified to multiple falls in service due to icy conditions, to include one about 2 weeks before discharge at Fort Belvoir. A fellow servicemember corroborated this fall as noted in an August 2012 statement. The Veteran has not undergone a VA examination for his claim low back condition. As a part of the duty to assist claimants, VA must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); 38 U.S.C. § 5103A(d)(1). Based on the foregoing, the low threshold for VA to provide a medical examination and opinion is met. This matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his lower back condition. The examiner should review the Veteran's claim file to become familiar with the history of treatment for these conditions. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a lower back condition incurred in, caused by, or otherwise related to military service, including an in-service fall from a telephone pole in 1959? The examiner should assume as for the limited purposes of providing this opinion as true that the Veteran fell from a telephone pole shortly before his discharge in August 1959, and he was hospitalized for a back injury as a result of that incident. Note: A full credibility determination, if need, will be conducted once all developmental evidence has been associated with the claims file. The examiner is advised that the Veteran's service medical records were destroyed in a fire at the National Archives after his discharge from service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an 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). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.