Citation Nr: 21032391 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-03 913 DATE: May 26, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for blindness of the left eye is remanded. FINDINGS OF FACT 1. In a November 1980 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a bilateral knee disability. The Veteran did not file a Notice of Disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence received since the November 1980 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 bilateral knee disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1976 to June 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in relevant part, denied service connection for blindness in the left eye and continued a previous denial of service connection for a bilateral knee disability. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a February 2020 hearing regarding the issues of service connection for blindness in the left eye and a bilateral knee disability. A copy of the hearing transcript has been reviewed and associated with the claims file. Although he did not specifically identify entitlement to service connection for blindness in the left eye on his Form 9 submitted in November 2018, the Board will take jurisdiction over this issue. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Whether new and material evidence has been submitted to reopen the claim of service connection for a bilateral knee disability A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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. Id. at 118. In the present case, the Veteran's claim of service connection for a bilateral knee disability was denied in November 1980 because the evidence did not show a current disability. The evidence of record at the time of the rating decision consisted of the claim form, a July 1980 VA examination, and the Veteran's personnel and service treatment records from May 1978 through his discharge. Since the November 1980 rating decision, a September 2017 VA examination and the February 2020 hearing transcript have been added to the claims file. After reviewing this evidence, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for a bilateral knee disability. This evidence is new, as it was not part of the record at the time of the November 1980 rating decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim. Specifically, the September 2017 examination revealed a diagnosis of degenerative arthritis of the bilateral knees and the Veteran testified in the February 2020 hearing that his knee problems began during service and have persisted to the present. Accordingly, the evidence presented is new and material, and the claim of service connection for a bilateral knee disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. When VA undertakes the effort to provide an examination, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inadequate medical examinations include examinations that provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr, 21 Vet. App. at 311. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez, 22 Vet. App. at 304. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The Veteran underwent a VA examination in September 2017, and the examiner issued a medical opinion in November 2017. The medical opinion is inadequate for the purpose of adjudicating the Veteran's service connection claim. The examination report lists degenerative arthritis and chondromalacia patella of the bilateral knees as his current diagnoses. However, this is contradicted by the examiner's opinion that the chondromalacia noted in his service treatment records was acute in nature. The examiner also stated that a nexus between his current disability and his service has not been established but provided no rationale other than the apparently acute nature of his in-service chondromalacia and a lack of evidence showing chronicity of care. On remand, the September 2017 examiner should clarify whether the Veteran currently has chondromalacia patella. If he does not, the examiner should provide an adequate rationale for her opinion that the Veteran's in-service knee problem was acute. She should also provide an opinion as to whether the Veteran's degenerative arthritis is related to his chondromalacia patella. Additionally, the November 1980 rating decision indicated that the Veteran's service treatment records prior to May 1978 were not available for review but did not provide any explanation as to why those records were unavailable. The claims file contains a medical examination dated in April 1978, but it does not contain any earlier service treatment records, including his entrance examination. The Veteran's military personnel records are also absent from the claims file. On remand, VA should attempt to obtain these records and add them to the claims file. If any records are unavailable, VA should provide reasoning for their unavailability and detail the efforts undertaken to obtain such records. 2. Entitlement to service connection for blindness of the left eye is remanded. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA is obligated to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. at 83. The Veteran's VA and private treatment records indicate that the vision in his left eye is significantly impaired. A January 2015 VA treatment note states that his left eye vision acuity was worse than 20/400, and private treatment records dated in March 2017, May 2018, January 2019, and August 2019 show that he was able to count fingers at a distance of one to two feet. Additionally, a private treatment record dated in August 2019 notes end-stage exudative macular degeneration, pigment epithelial detachment, a cataract, fluid and hemorrhaging, and a macula tear on his left eye. Thus, a current disability has been established by the record. The Veteran asserts that his left eye disability is related to his active duty service. The Veteran's available service treatment records show complaints of itching and excess water in his left eye in September 1978. Because the threshold for finding a link between a current disability and service is low, the Board finds that VA's duty to assist has been triggered and a VA examination is thus warranted. See McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from April 2016 to the present. 2. Obtain and associate with the claims file all of the Veteran's service treatment records and military personnel records for his entire period of service, from June 1976 to June 1980. If any records cannot be obtained, VA must make a finding of unavailability and provide notice to the Veteran and his representative. 3. After completion of #1 and #2, obtain an addendum medical opinion from the September 2017 examiner or, if she is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner and such review should be noted in the examination report. A VA examination is only necessary if deemed so by the examiner. The examiner should provide an opinion as to the following: (a.) Does the Veteran have a current diagnosis of chondromalacia patella (at any time since June 2015)? (b.) If the Veteran does not currently have chondromalacia patella, please provide a detailed rationale for the statement in the November 2017 medical opinion that the Veteran's in-service knee problems were acute in nature. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's degenerative arthritis of the bilateral knees had its onset during, or is otherwise related to, his active duty service? In responding to this question, please discuss whether his degenerative arthritis is at least as likely as not caused by chondromalacia patella. (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's degenerative arthritis of the bilateral knees manifested itself to a compensable degree within one year of separation from service? The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any 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. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of his left eye blindness. The examiner should opine as to whether his left eye blindness is at least as likely as not (a 50 percent or greater probability) related to his active duty service. The examiner must provide a comprehensive rationale for each proffered opinion. The rationale should include a discussion of the September 1978 service treatment note showing treatment for the Veteran's left eye. If completion of #2 reveals records showing any other treatment for his left eye, the examiner should also discuss any such records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any 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. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.