Citation Nr: 21041981 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-16 986 DATE: July 10, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a left knee disorder is granted. REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. FINDINGS OF FACT 1. The August 2008 rating decision denied the claim for entitlement to service connection for a left knee disorder; the Veteran was notified of this decision and did not appeal it, and new and material evidence was not received within one year of the notice of this decision. 2. Evidence received since the August 2008 rating decision when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1100. 2. New and material evidence having been received since the August 2008 rating decision, the criteria to reopen the claims for entitlement to service connection for a left knee disorder 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 December 1981 to November 1984. This appeal to the Board of Veterans' Appeals (Board) is from March 2014 and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. The undersigned agreed to keep the record open for 60 days to allow time to submit additional evidence. A transcript of the hearing is in the record. The Veteran's attorney submitted additional arguments and medical evidence following the hearing. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1993) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disorder. The August 2008 rating decision denied entitlement to service connection for a left knee disorder essentially based on findings that that there is no evidence of a left knee problem in service or nexus to service. The Veteran did not submit a notice of disagreement with the August 2008 rating decision. VA did not receive new and material evidence within one year of the issuance of the August 2008 rating decision. As such, the August 2008 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the August 2008, the Veteran's attorney submitted a January 2021 opinion that links the Veteran's left knee disorder to injuries in service. See February 2021 Medical Treatment Record Non-Government Facility. Nexus evidence is an essential element to establish service connection, and as there had previously been no nexus evidence linking the claimed disability to service, this evidence is both new and material. Thus, the claim is reopened. REASONS FOR REMAND 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for bilateral knee disorder is remanded. 4. Entitlement to service connection for a low back disorder is remanded. 5. Entitlement to service connection for a cervical spine disorder is remanded. 6. Entitlement to service connection for a right hip disorder is remanded. During the January 2021 hearing, the Veteran indicated that he had applied for disability benefits with the Social Security Administration (SSA) in 2017. When VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992). These records should be obtained. Aside from the Veteran's enlistment examination, which was included among his service personnel records, none of the Veteran's service treatment records have been associated with the record. Although the RO made a formal finding concerning their unavailability, the Board finds that additional steps may be taken to find these records through alternate sources. The Veteran testified to having back injuries in service and that a VA physician told him that the arthritis in his body originated from a fractured coccyx that he believed he had in service. His attorney also contends that the Veteran's orthopedic disorders are the result of wear and tear during service. Although he submitted private opinions for the back, bilateral knee, and right hip disorders, they are not adequately supported, so they are not sufficient to grant the claims. Consequently, the Veteran should be afforded VA examinations. The matters are REMANDED for the following action: 1. Contact the SSA and request a copy of the Veteran's SSA disability benefits file, including all associated medical records, and associate all records received with the claims file. If these records are unavailable, a written statement to this effect must be incorporated into the claims file. 2. Obtain the Veteran's service treatment records through alternate sources. Service personnel records show he did his basic training at Ft. Knox from December 1982 to March 1982 and Advanced Individual Training (AIT) at Ft. Lee from March 1982 to June 1982. He was at Ft. Bliss from June 1982 to July 1982, and in Germany with the 269th Sig. Co from August 1982 to October 1984. The medical facilities at these locations should be contacted to determine if any treatment records have been retained. Any negative response received must be documented in the claims file. 3. Obtain all outstanding VA treatment records dated from 1990 to the present. Any archived records should be requested. 4. After the above development has been completed, schedule the Veteran for a VA examination to determine whether his orthopedic disorders are related to service. The claims file must be made available to and reviewed by the examiner. The clinician should elicit a complete history of the Veteran's bilateral knee, low back, cervical spine, and right hip disorders and all examination findings should be fully reported. Based on the examination, and review of the claims file, the clinician should respond to the following: (a) Does the Veteran have a current low back disorder that is at least as likely as not (50 percent probability or greater) the result of or related to in-service injuries? (i) The clinician must also specifically opine on whether the old fracture of L1 that was discovered on a January 2012 MRI is at least as likely as not related to the Veteran's reports of falling or being kicked in the back during service. (b) If the old fractured L1 is at least as likely as not related to service, did it at least as likely as not lead to the spread of arthritis in his knees, cervical spine, or right hip? (Continued on the next page) (c) Are any of the bilateral knee, right hip, cervical spine, or low back disorders at least as likely as not related to wear and tear during his two years and eleven months of active duty? (d) The clinician must explain the rationale for each opinion expressed. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.