Citation Nr: 21039980 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 19-30 821 DATE: July 2, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a right knee disability is reopened, and to this extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a left knee disability is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The November 1971 rating decision that denied service connection for right and left knee disabilities was not timely appealed and became final. 2. Evidence received since the November 1971 rating decision raises a reasonable possibility of substantiating the underlying claims for service connection for right and left knee disabilities. CONCLUSIONS OF LAW 1. The November 1971 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for a right knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim of service connection for a left knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision. New and Material Evidence 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; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 1. Reopening claims for service connection for left and right knee disabilities. As the facts and analysis for both claims to reopen are substantially the same, the Board will address them together for the purposes of brevity. The RO last denied service connection for right and left knee disabilities in November 1971. The Veteran was notified of the decision but did not file a notice of disagreement, nor were new and relevant service department records associated with the file subsequent to the decision. 38 C.F.R. §§ 3,156(c), 20.201, 20.302. No evidence indicating that the right and left knee disabilities were due to service were associated with the file during the appellate period. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). As such, the November 1971 rating decision is final. 38 C.F.R. § 20.1103. The evidence of record in November 1971 consisted of the Veteran's lay statements and service treatment records. The evidence failed to establish that the Veteran's right and left knee disabilities were causally related to his active service. Evidence received since the rating decision includes VA examination reports, private treatment records, and further lay statements from the Veteran. Of particular note, in his October 2019 VA form 9, the Veteran asserted that within one year of discharge from service he saw a doctor for his bilateral knee condition and that around 1972 he was seen at Forsyth Memorial Hospital (also known as Novant) for x-rays for his bilateral knees. In addition, in a March 2018 letter, J.S.S., M.D., opined that the Veteran's left knee arthritis was secondary to his injury suffered in service. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of ongoing symptoms within a year of discharge and a nexus between the Veteran's left knee disability and service. It is not redundant and raises a reasonable possibility of substantiating the claims. Therefore, reopening of the claims for service connection for right and left knee disabilities is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND Unfortunately, the issues remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for right and left knee disabilities, which he contends are related to injuries he sustained during service. The Board notes that the Veteran's service treatment records show that the Veteran sought treatment for injuries to his left knee in February 1969 and May 1970 and for right knee pain in May 1971. Private treatment records show that the Veteran was diagnosed with mild osteoarthritis, established by x-ray, of both the right and left knees in November 2013. The Veteran underwent a VA examination of his right and left knees in August 2018 and an addendum opinion was obtained later that month. During the examination, the Veteran reported that he injured his right and left knees in service and that he has continued to experience bilateral knee pain ever since service. The examiner who provided the addendum opinion determined that the Veteran's right and left knee disabilities were less likely than not incurred in or caused by the in-service injuries. The examiner opined that although the Veteran was treated in service for knee pain, there is no permanent residual or chronic disability shown that is related to the injuries in service. Since the Veteran did not obtain treatment until many years after service, and therefore there is no evidence of continuity and chronicity, and no causal relationship can be established. The Board finds the August 2018 medical opinion to be inadequate. First, the examiner did not consider the Veteran's competent reports of seeking treatment for pain within a year after discharge and then again around 1972 for his knees. Second, the examiner did not explain why osteoarthritis of the right and left knees cannot be considered a residual disability of an injury that occurred many years prior. Moreover, the examiner based her negative opinion on an inaccurate review of the evidence. In this regard, the examiner erroneously stated that the Veteran's medical records do not contain documentation of a knee injury incurred during active duty from year 1969 to 1971. As noted above, the Veteran's service treatment records contain multiple instances of complaints and treatment of both knees, with a twisting type injury to the left knee in 1970. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following action: 1. Request the Veteran to provide authorization for VA to obtain records from Forsyth Memorial Hospital (also known as Novant) for treatment and xrays of his knees in 1972, as identified by him in his October 2019 VA form 9. 2. Then, forward the Veteran's claims file to VA physician of appropriate expertise to determine the nature and etiology of his left and right knee disabilities. An in-person VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and note the review in the examination report. Thereafter, the examiner is requested to provide an opinion with respect to the following: In regard to the right and left knee disabilities: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right and left knee disabilities manifested during service or within one year of separation, or are otherwise causally related to the Veteran's active service or any incident therein? In providing the above opinion, the examiner must adequately consider and address the pertinent evidence of record, to include the Veteran's service treatment records and lay contentions (to include that he sought treatment for his knees in 1971 and 1972, within one year after discharge from service). The medical opinion must discuss whether a relationship exists between the Veteran's currently diagnosed disabilities and the injuries and treatment of his left knee in February 1969 to May 1970, to include a noted twisting injury, and his right knee in May 1971. The examiner is advised that the Veteran is competent to report that he sustained an injury during service, even if such injury is not documented in his service treatment records. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disabilities and military service. The examiner must set forth a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.