Citation Nr: 21042522 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-11 616 DATE: July 13, 2021 ORDER New and material evidence having been introduced, the claim of service connection for a left knee disorder is reopened. REMANDED Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. A September 14, 2000 rating decision denied entitlement to service connection for a left knee disorder. The Veteran was apprised of the decision and did not appeal within a year of its issuance. 2. Evidence received into the record since the September 2000 rating decision, by itself or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for a left knee disorder. CONCLUSIONS OF LAW 1. The September 2000 rating decision denying entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103. 2. The evidence received since the September 2000 rating decision is new and material, and the claim of entitlement to service connection for a left knee disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2021. The transcript is of record. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been introduced to reopen a claim of service connection for a left knee disorder Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran's claim for service connection for a left knee disorder was denied in a rating decision in September 2000. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records, lay statements, and hearing testimony in support of his claim that shed additional light on his service and the nature of his condition. The Board finds this evidence "new," because it postdates the aforementioned rating decisions. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claim. Consequently, the claim of service connection for a left knee disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. Having reopened the Veteran's service connection claim, the Board finds that additional development is necessary before it can be finally adjudicated. The Veteran credibly testified that he suffered a significant injury to his left leg prior to service, but that the injury healed without residuals prior to entry. He then injured his left knee in service, and avers that disability has persisted since that injury. He adds that his in-service injury is, in his view, unrelated to the pre-service injury. On remand, a VA examination must be conducted and an expert medical opinion as to etiology obtained, to include an opinion as to whether a left knee disability clearly and unmistakably predated entry into service, and if so, whether that disability was clearly and unmistakably not aggravated by any aspect of service. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to explore the etiology of his left knee condition. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should list all current disabilities of the left knee. The examiner should then indicate whether a currently diagnosed left knee disability clearly and unmistakably predated entry into active duty service, and if so, whether that disability was clearly and unmistakably not aggravated beyond its normal progression by any aspect of active duty service. For each diagnosed condition that did not predate entry into active duty service, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. In furnishing these opinions, the examiner must consider as credible the Veteran's lay statements with respect to continuity of symptomatology since his in-service left knee injury. A thorough and reasoned explanation must accompany all opinions expressed. 3. Review the examination report and any opinions expressed to ensure they are in compliance with this remand's directives and implement corrective procedures if required. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.