Citation Nr: 21029899 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-17 439 DATE: May 17, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a left knee disability is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for a right knee disability is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a left knee disability was previously denied by a November 2008 rating decision; the Veteran did not appeal the denial of service connection for a left knee disability in that decision, and VA did not actually or constructively receive documentation constituting new and material evidence pertinent to that claim within the one-year appeal period. 2. Additional evidence received since the November 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability, and raises a reasonable possibility of substantiating that claim. 3. The Veteran's claim for service connection for a right knee disability was previously denied by a June 2008 rating decision; the Veteran did not appeal the denial of service connection for a right knee disability in that decision, and VA did not actually or constructively receive documentation constituting new and material evidence pertinent to that claim within the one-year appeal period. 4. Additional evidence received since the June 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying service connection for a left knee disability is final with regard to that issue. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The June 2008 rating decision denying service connection for a right knee disability is final with regard to that issue. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 4. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a right knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to August 1966. His service personnel records (SPRs) verify that he received the Combat Infantryman Badge. In February 2018, an informal conference was held before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ). On the Veteran's March 2018 VA Form 9, he requested a hearing before the Board. However, in written submissions received in June 2020 and July 2020, the Veteran's attorney (on the Veteran's behalf) withdrew this request for a Board hearing. REOPENING SERVICE CONNECTION CLAIMS Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability. A claim for entitlement to service connection for a left knee disability was initially denied in a March 2008 rating decision on the basis that a left knee disability was not shown in service (or within one year of service discharge) and that the evidence did not show a nexus between his current left knee disability and his service. Following VA's receipt of additional evidence, the claim was readjudicated in a June 2008 rating decision and was once again denied on the basis that a left knee disability was not shown in service (or within one year of service discharge) and that the evidence did not show a nexus between his current left knee disability and his service. Thereafter, following VA's receipt of additional evidence, the claim was readjudicated in a November 2008 rating decision and was denied on the basis that the evidence did not show a nexus between his current left knee disability and any incident of his service (including a documented left knee injury while in service). The AOJ notified the Veteran of its November 2008 decision, and of his appellate rights. The Veteran did not appeal the denial of service connection for a left knee disability in the November 2008 decision, nor did VA actually or constructively receive any new and material evidence pertinent to that claim within a year following that decision. Therefore, the November 2008 rating decision became final with regard to the issue of service connection for a left knee disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the November 2008 rating decision includes written submissions from the Veteran (including those dated in March 2015, July 2015, and June 2020) wherein he has asserted that he has had continuity of left knee symptomatology from the time of his left knee injury in service to the present day. This evidence was not before adjudicators when the Veteran's claim for service connection for a left knee disability was last denied by the AOJ in November 2008, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability and raises a reasonable possibility of substantiating that claim. Accordingly, the claim is reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability. A claim for entitlement to service connection for a right knee disability was initially denied in a March 2008 rating decision on the basis that a right knee disability was not shown in service (or within one year of service discharge) and that the evidence did not show a nexus between his current right knee disability and his service. Following VA's receipt of additional evidence, the claim was readjudicated in a June 2008 rating decision and was once again denied on the basis that a right knee disability was not shown in service (or within one year of service discharge) and that the evidence did not show a nexus between his current right knee disability and his service. The AOJ notified the Veteran of its June 2008 decision, and of his appellate rights. The Veteran did not appeal the denial of service connection for a right knee disability in the June 2008 decision, nor did VA actually or constructively receive any new and material evidence pertinent to that claim within a year following that decision. Therefore, the June 2008 rating decision became final with regard to the issue of service connection for a right knee disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the June 2008 rating decision includes written submissions from the Veteran (including those dated in March 2015, July 2015, and June 2020) wherein he has asserted that he has had continuity of right knee symptomatology from the time of his left knee injury in service to the present day as a result of favoring the injured left knee and putting more weight on the right knee throughout that time. This evidence was not before adjudicators when the Veteran's claim for service connection for a right knee disability was last denied by the AOJ in June 2008, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability and raises a reasonable possibility of substantiating that claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. The Veteran contends that he currently has a left knee disability and a right knee disability which may have resulted from his military service. As noted above, he has specifically asserted that he has had continuity of left knee symptomatology from the time of his left knee injury in service to the present day, as well as continuity of right knee symptomatology from the time of his left knee injury in service to the present day as a result of favoring the injured left knee and putting more weight on the right knee throughout that time. During the Veteran's service, a May 1964 hospital narrative summary report documented the Veteran's hospitalization from March 1964 to April 1964 for pain and swelling in his left knee after sustaining a blow to the lateral aspect of his left knee in March 1964 when he collided with another trainee during an Airborne training drill. His diagnosis at the time of this hospitalization was noted to be left knee medial collateral ligament sprain. His service treatment records (STRs) are otherwise silent for any complaints, findings, diagnoses, or treatment of a left knee disability or a right knee disability. Post-service, in a May 1986 statement, a private doctor noted that he had treated the Veteran since August 1985 after he sustained blunt trauma to the anterior aspect of his right knee while employed as a mail carrier with the United States Postal Service, and the private doctor noted a current impression for the Veteran of status post severe contusion to the right knee with muscular atrophy. Thereafter, a May 2004 private treatment record noted an impression of degenerative joint disease in both knees "from wt [weight]." A September 2011 VA treatment record noted that he had had both knees replaced at the Cleveland Clinic Solon Family Health Center (CCF) in 2010. On remand, all records pertaining to his knee replacement surgeries should be obtained. At a March 2018 VA knee examination, no left or right knee diagnoses were noted for the Veteran. He reported a history of knee strain in 1964, and it was noted that he now had arthritis in both knees and that both knees were replaced in 2010. The VA examiner provided the following opinion: "[R]ecords show remoted mcl [medial collateral ligament] strain left knee in 64, now had both knees replaced [due] to arthritis, [due] to length of time and lack of nexus any relationship of either knee to remote strain cannot be resolved without speculation[.]" However, the VA examiner did not consider or address the Veteran's verified combat service or his allegations of continuity of left knee and right knee symptomatology since his service. Thereafter, a VA treatment record noted that the Veteran was receiving treatment from outside providers, including a primary care provider and a medical "orth" provider at CCF. On remand, all records pertaining to his knees from these private providers should be obtained. Furthermore, an April 2018 Social Security Administration (SSA) inquiry revealed "Y" [for yes] with regard to the Veteran's Title II Status and Title XVI Status, indicating that he may be in receipt of SSA disability benefits. On remand, all records pertaining to any applications for and awards of SSA disability benefits should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). On remand, after all outstanding treatment records have been associated with the claims file, a new examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current left knee and right knee disabilities. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed left knee and right knee disabilities, including the Cleveland Clinic Solon Family Health Center (CCF) (including all records pertaining to his knee replacement surgeries at CCF in 2010 as well as all records from his primary care provider and medical "orth" provider at CCF). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from April 2018 to the present. 3. Request and obtain from the SSA all relevant documents pertaining to any applications by the Veteran for SSA disability benefits, including any decisions and/or determinations, and supporting medical documentation utilized in rendering any relevant decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 4. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the nature and etiology of any current left knee disability and right knee disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. For each left knee disability and right knee disability diagnosed at any time during the period of the current claim, the examiner must provide an opinion as to whether it is at least as likely as not that each such disability began during the Veteran's active service or is otherwise related to any incident of his military service (with specific consideration given to all pertinent treatment records, his verified combat service, and his allegations of continuous symptoms since his service). If and only if the examiner opines that any left knee disability is related to the Veteran's active service and also opines that no right knee disability is related to his active service, then the examiner should also provide an opinion as to whether it is at least as likely as not that any current right knee disability is either caused by or aggravated by any such left knee disability. The term "aggravation" means any incremental increase in disabilityany additional impairment of earning capacityin the non-service-connected condition resulting from the service-connected disability regardless of its permanence. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.