Citation Nr: 21040216 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-10 240 DATE: July 2, 2021 ORDER The claim for service connection for a disability of the right knee is reopened. The claim for service connection for a disability of the left knee is reopened. REMANDED Entitlement to service connection for a disability of the right knee is remanded. Entitlement to service connection for a disability of the left knee is remanded. FINDINGS OF FACT 1. The claims for service connection for bilateral knee disabilities were previously denied in a March 2013 rating decision, which the Veteran did not appeal. 2. Since the March 2013 decision was issued, new and material evidence has been received to reopen the claims. CONCLUSIONS OF LAW 1. The March 2013 rating decision is final with regard to the denial of service connection for disabilities of the bilateral knees. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claims for service connection for disabilities of the bilateral knees have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record. Petition to Reopen Claims Under VA's legacy appeal system, which applies here, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy appeal system). To reopen a previously and finally disallowed claim under VA's legacy appeal system (which applies here), new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). "New and material evidence" is defined as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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). To warrant reopening, the new evidence must neither be 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Bilateral Knee Disabilities The claims for service connection for bilateral knee disabilities (claimed as knee damage, and characterized as osteopenia) were originally denied in a March 2013 rating decision. The Veteran was notified of the decision and his appellate rights in a March 2013 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not file a NOD, or submit or identify additional evidence during the appeal period. See 38 C.F.R. §§ 20.200, 20.201, 20.302; see also 38 C.F.R. §§ 3.400, 3.156(b). Accordingly, the March 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The March 2013 rating decision denied service connection for the Veteran's bilateral knee disabilities based on a VA medical opinion finding that he had osteopenia of the knees that was not due to his service-connected pes planus, but rather due to other factors such as genetics. Since the March 2013 decision was issued, the Veteran submitted an article on knee pain (chondromalacia patella) authored by the Cleveland Clinic which states, in part, that flat feet (i.e. pes planus) may increase the likelihood of chondromalacia patella. Notably, a March 1977 service treatment record reflects a diagnosis of chondromalacia patella. The Cleveland Clinic article is new to the file since the March 2013 decision was issued, and is not redundant or cumulative of evidence previously of record. It relates to the unestablished fact of whether the Veteran has a current disability of either knee caused or aggravated by his service-connected bilateral pes planus. See 38 C.F.R. § 3.310 (setting forth criteria for secondary service connection). It also satisfies the low threshold of raising a reasonable possibility of substantiating the claims for purposes of determining whether reopening is warranted. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the claims for service connection for bilateral knee disabilities. See 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a disability of the right knee is remanded. 2. Entitlement to service connection for a disability of the left knee is remanded. A VA examination and medical opinions addressing direct and secondary service connection are warranted. A March 1977 service treatment record shows complaints of the knees buckling and giving way when climbing ditches or carrying a backpack. The stated his knees were "double jointed." There was no known trauma. On examination, there was bilateral hyperextension of the knees and mild anterior crucial laxity bilaterally. The Veteran was diagnosed with bilateral chondromalacia patella and mild ligamentous laxity of the knees. A VA medical opinion should thus be obtained as to the likelihood that the Veteran has a current right and/or left knee condition medically linked to the in-service symptoms and diagnoses. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A VA medical opinion should also be obtained as to the likelihood that the Veteran's bilateral knee conditions have been caused or aggravated by his service-connected pes planus. See 38 C.F.R. § 3.310. The Board notes that a VA examination and opinion were obtained in January 2013. The Board finds the January 2013 opinion insufficient to make an informed decision. The opinion states that the Veteran has diagnoses of osteopenia based on January 2013 x-ray findings, which are not "due to" his pes planus. The Veteran may have since developed a knee condition other than osteopenia. For example, an August 2014 VA magnetic resonance imaging study (MRI) of the left knee shows a diagnosis of a Baker's cyst and a 50% thickness fissure of the medial patellar cartilage. Moreover, the opinion does not speak to the issue of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a medical opinion that a claimed disability is "not due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the issue of aggravation under § 3.310(b)). The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since January 2018. 2. Arrange for a VA examination of the Veteran's knees, and medical opinions as specified below. The claims file must be made available to the examiner for review. A thorough examination should be performed, including any indicated tests or studies, as determined by the examiner. All pertinent findings must be set forth in the examination report. After reviewing the file and examining the Veteran, the examiner is asked to render opinions on the following: Direct service connection: Whether it is at least as likely as not (50 percent probability or more) that the Veteran has a left and/or right knee condition that is related to his in-service knee symptoms, which were diagnosed at the time as chondromalacia patella and ligamentous laxity. Secondary service connection: Whether it is at least as likely as not that the Veteran has a left and/or right knee condition that is (a) caused or (b) aggravated by his service-connected bilateral pes planus. In rendering the opinion, the examiner should review the Cleveland Clinic article regarding chondromalacia patella. That article states, in part, that flat feet may increase the likelihood of chondromalacia patella. The opinion must separately address the issues of causation and aggravation. Complete explanations must be provided in support of the conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.