Citation Nr: 21041461 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-50 429A DATE: July 9, 2021 ORDER The appeal seeking to reopen a claim for entitlement to service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, the claim of entitlement to service connection for a left knee disability was denied because the condition neither occurred in nor was caused by service. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. The evidence added to the record since the June 2014 rating decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a left knee disability . CONCLUSION OF LAW New and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1977 to December 1979. In March 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. In August 2009, VA made a formal finding that the Veteran's complete service treatment records were unavailable. In accordance with O'Hare v. Derwinski, 1 Vet. App. 365 (1991), a heightened duty now exists to assist the Veteran in the development of the case. New and Material Evidence The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen the claim. The Veteran's initial claim seeking entitlement to service connection for a left knee disability was denied in a June 2014 rating decision because the condition neither occurred in nor was caused by service. The rating decision also noted that there were no service treatment records available for review. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. Evidence of record at that time of the Board decision included post-service medical records and the Veteran's lay statements. In October 2015, the Veteran filed his current petition to reopen the claim. Among the newly submitted evidence submitted in support of his petition are the Veteran's statements made at his March 2021 Board hearing in which he testified to having injured his left leg in service and experienced intermittent symptoms of left knee pain that began during his active duty service and have continued until the present day. This lay evidence was not of record at the time of the prior final rating decision, and therefore, the Veteran's Board testimony is new. The initial claim of service connection was essentially denied because of the lack of any service treatment records confirming an in-service injury. The Veteran's lay statements directly relate to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. His statements also provide material evidence in support of a nexus between his reported in-service injury and his present symptoms. Accordingly, the Board finds that new and material evidence sufficient to reopen a claim for service connection has been received, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. Having reopened the claim, remand is needed to afford the Veteran a VA examination with opinion on whether any diagnosed left knee condition is related to his reports of an in-service injury during active duty service or his arguments that his left knee condition is secondary to his service-connected disabilities. On remand, the record should also be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from December 2020 to the present and associate those documents with the Veteran's record 2. After completion of the above, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left knee disability. Copies of all pertinent records should be made available to the examiner for review. The examiner should then answer the following questions: (a.) Identify all diagnoses related to the claimed left knee. (b.) Is it as likely as not (50 percent or greater probability) that any diagnosed left knee disability either had its onset in or is otherwise related to the Veteran's active duty service? (c.) Is it as likely as not (50 percent or greater probability) that any diagnosed left knee disability was caused or aggravated (i.e., any increase in disability) by a service-connected disability? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 3. Confirm that the VA medical opinions provided comport with this remand. Specifically, ensure that the standard for secondary aggravation opinions is any increase in disability, not the standard of "beyond the natural progression" as noted on the examination form itself. If the incorrect standard is applied, obtain an addendum opinion prior to readjudication of the claim. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.