Citation Nr: 22015366 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-38 035 DATE: March 17, 2022 ORDER The petition to reopen the previously denied claim for service connection for right knee disability (previously denied as sprained right hamstring) is granted. REMANDED Entitlement to service connection for right knee disability is remanded. FINDING OF FACT An unappealed February 2012 rating decision denied entitlement to service connection for sprained right hamstring; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The February 2012 rating decision denying the claim for service connection for sprained right hamstring is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2004 to January 2011. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of supporting evidence. No evidence was subsequently submitted by the Veteran or his representative. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee disability (previously denied as sprained right hamstring). The Board concludes that the February 2012 rating decision denying the claim for service connection for sprained right hamstring is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of whether the agency of original jurisdiction found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). A December 2011 rating decision and February 2012 rating decision denied service connection for sprained right hamstring because the evidence of record did not show that the Veteran's disability was incurred in or related to service. VA notified the Veteran of the decision in a February 2012 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, testimony, submitted by the Veteran, reveals in-service injuries to the right knee. See Hearing Transcript at 5 (November 2021). This evidence was not previously considered by decision-makers and tends to support the Veteran's theory of entitlement. For the purposes of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for right knee disability is remanded. The Veteran, and his representative, contends that his current right knee disability stems from service. In support of this contention, the Veteran provided testimony for in-service injuries. See Hearing Transcript at 5 (November 2021). For reasons explained below, the Board finds that remand is necessary. First, the Board observes that the record reveals competent evidence for current disability. Specifically, VA examination report, dated in April 2016, shows a diagnosis for right knee anterior cruciate ligament (ACL) tear. Second, the record reflects competent, credible evidence of in-service injury, described as falling and landing on the right knee during a deployment. In this regard, the Veteran competently and credibly testified to in-service injury, in which, he fell and landed on his right knee during a deployment. The Veteran further provided lay statements, to the effect, that he was misdiagnosed because the injury occurred in a combat zone and, therefore, was not provided with proper examination. The Veteran's report of in-service injury is corroborated by the evidence of record. In this regard, the Board observes that the record contains evidence showing that the Veteran was deployed to Iraq; was involved in several improvised explosive device explosions; and complaints and treatment related to the right knee during service. Thus, the Board finds competent, credible evidence of in-service injury, described as falling and landing on the right knee during a deployment. Third, the record reflects competent, credible evidence of in-service injury, described as a Humvee accident, in which, the Veteran's right knee collided with a metal bar inside the Humvee. In this regard, the Veteran competently and credibly testified to in-service injury. His report of in-service injury is further corroborated by service treatment record, dated in February 2007, showing complaints of right knee pain as due to motor vehicle accident. Thus, the Board finds competent, credible evidence of in-service injury, described as a Humvee accident, in which, the Veteran's right knee collided with a metal bar inside the Humvee. VA medical opinion, dated in April 2016, reflects the conclusion that the Veteran's right knee disability is less likely than not incurred in or caused by an in-service injury, event or illness. The Board finds the medical opinion inadequate for adjudicative purposes. In this instance, the opinion seems to have limited its rationale to the Veteran's in-service injury that he incurred during deployment. Indeed, the opinion does not show that the clinician considered the Humvee accident in forming his conclusion. The opinion, further, shows that the clinician found the more likely cause of the Veteran's current right knee disability stemmed from a post-service hockey injury. The essential rationale connecting the medical finding to the conclusion, however, is not discernable and the Board is not competent to substitute its own medical rationale for that of the opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). It is noted that the clinician is not required to accept the Veteran's theory that his military service caused his current right knee disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given the above, the Board may not rely on the VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Accordingly, remand is warranted for an addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, remand is also required to attempt to obtain relevant outstanding non-VA treatment records. Specifically, at the Board hearing, the Veteran testified to receiving private treatment for his right knee following service. See Hearing Transcript at 12 (November 2021). Further, private treatment record, dated in March 2014, shows that a medical provider for the Veteran, Dr. Palmer, requested magnetic resonance imaging (MRI) for the right knee. The MRI report shows an impression for proximal ACL acute complete rupture with lateral compartment contusions and joint effusions. The record, however, does not reveal that VA has attempted to obtain private treatment records from this provider, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to allow VA to obtain these records. Aside from the above explicit findings, in remanding this matter, the Board makes no further findings, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his right knee disability, to include from Dr. Palmer. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from May 2016 to the Present. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's right knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any right knee disability. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: (a) Whether any right knee disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address conceded in-service injuries, described as (1) falling and landing on the right knee during a deployment, and (2) a Humvee accident, in which, the Veteran's right knee collided with a metal bar inside the Humvee. The opinion should also consider and expressly address evidence of a post-service hockey injury. Explain. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, Associate 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.