Citation Nr: 21040333 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-39 132 DATE: July 3, 2021 ORDER The application to reopen a previously denied claim for service connection for a left knee condition is granted. REMANDED Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. In a May 2008 rating decision, the Veteran's claim for service connection for a left knee condition was denied. 2. No notice of disagreement (NOD) was filed and no further evidence was added to the claims file for one year after the May 2008 rating decision was mailed. 3. Since the May 2008 rating decision, the Veteran has not submitted evidence in support of his claim for service connection for a left knee condition which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board. CONCLUSIONS OF LAW 1. The May 2008 rating decision denying service connection for service connection for a left knee condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in VA's legacy appeals system. The Veteran testified at a May 2021 Board hearing before the undersigned; a transcript is associated with the claims file. New and material evidence has been received to reopen a previously denied claim for service connection for a left knee condition A rating decision of March 1984 denied service connection for a left knee condition. As no NOD was filed and no evidence submitted within one year after the March 1984 rating decision was mailed, the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The Veteran's applications to reopen this claim were denied in August 2000, January 2002, and May 2008. As no NOD was filed and no evidence submitted within one year after the May 2008 rating decision was mailed, the rating decision became final. Id. The previous denials, including the final denial in May 2008, were based on a conclusion that the Veteran's left knee condition preexisted service and was not aggravated beyond its natural progression during service. At his May 2021 Board hearing, the Veteran testified that his knees were 100 percent good to go before he entered service. The Board finds that the Veteran's testimony is new and non-duplicative, in that the Veteran had not previously contested the conclusion that his left knee condition preexisted service. The Board finds that it is material, as it directly supports the Veteran's claim that his left knee condition began during service. Because the Veteran has submitted new and material evidence supporting his claim of service connection for a left knee condition, reopening this claim is warranted. The claim itself will be addressed in the remand section below. REASONS FOR REMAND Entitlement to service connection for a left knee condition is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). In July 2017, the Veteran was scheduled for a VA examination to determine the nature and etiology of his left knee condition. The record shows that this appointment was rescheduled and the Veteran did not get notice in time to attend the earlier scheduled exam. He arrived at the originally scheduled time but did not interact with the VA examiner and was not not physically examined by the VA examiner. The VA examiner still completed a disability benefit questionaire (DBQ) and rendered an opinion regarding the caues of the Veteran's current left knee condition. The DBQ contained several conflicting statements regarding whether the answers were based on a record review or an in-person examination, misdated the Veteran's 1982 left knee arthroplasty, and included information about recent drug treatment and screenings that were unrelated to the issue at hand and potentially indicative of bias against the Veteran. The July 2017 VA examination and opinion are therefore inadequate to support a Board decision on the issue of service connection for a left knee condition. A new examination and opinionbased on full review of the record and supported by stated rationaleis needed to fairly resolve the appellant's claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Did the Veteran's left knee condition clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including his (approximately 12) documented complaints of left knee pain during service? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If there is a diagnosis of arthritis, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.