Citation Nr: 21040799 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-02 767 DATE: July 7, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Service connection for left knee disability was denied in a December 1971 rating decision and the Veteran did not appeal the decision. 2. Service connection for left knee disability was denied in a November 2009 rating decision and the Veteran did not appeal the decision. 3. Evidence received since the November 2009 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for a left knee disability. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for left knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1971 to July 1971. In June 2019, the Board denied the petition to reopen the claim for service connection for left knee disability because new and material evidence was not submitted. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court vacated and remanded the Board decision. 1. New and material evidence to reopen the claim for service connection for left knee disability. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran originally submitted a claim for service connection for a left knee disability in August 1971, which was denied in a December 1971 rating decision on the basis that the Veteran's left knee was injured while playing football in November 1970, prior to his military service, and was not aggravated by service. The Veteran was notified of the decision and he did not appeal it. As such, the decision is final. The Veteran requested to reopen the claim for service connection for a left knee disability in June 2009. This claim was denied in a November 2009 rating decision because the evidence submitted was not new and material as it did not establish that his current left knee pain was caused by service. The Veteran was notified of the decision and he did not appeal it. Therefore, the November 2009 rating decision became final. The additional relevant evidence received since the November 2009 rating decision includes lay statements from the Veteran. The Veteran submitted a statement associated with his claim in May 2017 that his doctor, who treated the Veteran for a left knee injury in November and December 1970, prior to service, stated that the Veteran was fit for duty upon entrance examination with no knee complaints. See May 2017 Statement in Support of Claim. Additionally, the Veteran indicated in a January 2018 Form 9 that he hurt his knee in service and that he no pre-existing knee condition upon entry into active duty. The Veteran's statements are new because they were not before the adjudicator in November 2009. The Board also finds that the new evidence is material because they provide information relevant to a different theory of entitlement to service connection for a knee disability. Thus, for these reasons, and affording the Veteran the benefit of the doubt, the claim for service connection for a knee disability is reopened. REASONS FOR REMAND 1. Service connection for a left knee disability is remanded. A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Here, service treatment records (STRs) indicate that in a February 1971 service enlistment examination, the Veteran's lower extremities were found to be clinically normal and he did not report having a history of any knee problems. In June 1971, the Veteran was seen for left knee pain and swelling. He reported that he had sustained a left knee injury while playing football in 1970, prior to his military enlistment and was found to left knee internal derangement. In a June 1971 separation examination, the Veterans lower extremities were found to be abnormal. In a July 1971 Medical Board Proceeding, the Medical Board found that the Veteran's left knee injury existed prior to service (EPTS) and was not aggravated by active service. The Medical Board recommended the Veteran be returned to duty for "separation for erroneous induction." The Veteran subsequently separated from service effective July 26, 1971. As stated above, the Veteran has submitted statements that indicate his left knee was normal upon entry into active service. See May 2017 Statement in Support of Claim and January 2018 Form 9. In support of his contentions, the Veteran points to a letter from Dr. R. dated in June 1971. Dr. R indicated that the Veteran was seen on November 24, 1970 following an injury sustained playing football. The Veteran was diagnosed with a contusion of the left knee. On November 27, 1970, the Veteran was again seen by Dr. R, who reported the Veteran was much improved from his last visit. The Veteran was last seen by Dr. R on December 11, 1970, when Dr. R indicated that an examination of the Veteran's left knee revealed normal range of motion. The Board notes that a VA medical opinion has not been obtained to determine the nature and etiology of the claimed left knee disability. As indicated above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the disease or injury existed prior to service and show clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. In light of the foregoing, the Board finds that an opinion is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records and/or physician statements. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Obtain a medical opinion to determine the nature and etiology of any left knee disability. The examiner must review the entire record and consider the Veteran's lay statements as to onset. The examiner is reminded that a presumption of soundness on entrance to service is afforded to the Veteran for any left knee disability not noted on clinical examination for entrance to service. Following a review of the entire record, to include the Veteran's lay statements, the examiner should determine: (a.) Whether it is clear and unmistakable, or undebatable, that the Veteran entered service with a left knee disability. If the examiner makes such a finding, he or she is asked to point to the evidence in the file that led to this conclusion. (b.) If a left knee disability pre-existed service, then the examiner is asked to provide an opinion on whether it is also clear and unmistakable that the disability was NOT aggravated (that is, did not undergo a permanent increase in severity) during service. (c.) If, and only if, the examiner is unable to find clear and unmistakable evidence supporting a pre-existing condition that was NOT aggravated during service, the examiner should then provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any current left knee disability had its clinical onset during the Veteran's period of active service or is related to incident, injury, or event in active service. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means with a much higher certainty than "at least as likely as not" or "more likely than not." The examiner should explain the medical basis for the conclusions reached. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the Veteran should be scheduled for such an examination. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dourmashkin, Mark W. 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.