Citation Nr: 22016013 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-67 761 DATE: March 21, 2022 ORDER New and material evidence having been submitted, the petition to reopen the claim of service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to a compensable rating for a right fifth finger disability is remanded. Entitlement to a compensable rating for right eyelid, status post cyst excision, is remanded. FINDING OF FACT The evidence associated with the claims file following the April 2010 denial of the Veteran's claim for service connection for a right knee disability is new and material. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for a right knee disability. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served two periods of active duty. He served in the United States Army from December 1968 to December 1971, and in the United States Marine Corps from September 1972 to January 1973. On appeal is a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued a previous denial of service connection for a right knee disability; continued the noncompensable disability rating assigned for the Veteran's service-connected right fifth finger disability; and continued the noncompensable disability rating assigned for the Veteran's service-connected right eyelid, status post cyst excision. As it relates specifically to the right knee disability, the Veteran has previously sought service connection for this claim. His claim was originally denied in a June 1974 rating decision, and since that time, subsequent petitions to reopen this claim have also been denied. The most recent denial was an April 2010 rating decision, wherein the RO determined that no new and material evidence had been submitted. The Veteran did not appeal this rating decision and it became final. A virtual hearing was held in this matter in November 2021 before the undersigned Veterans Law Judge. The matter is now before the Board of Veterans' Appeals (Board) for appellate review. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a right knee disability. The Board finds that new and material evidence regarding the Veteran's right knee disability has been received since the April 2010 denial, to include VA treatment records; Social Security Administration records; lay statements; and testimony from the November 2021 Board hearing in this matter. This new evidence relates to an unestablished fact necessary to substantiate the claim. Specifically, the newly submitted evidence establishes that the Veteran reported aggravation of his right knee disability, which was not shown in April 2010. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for a right knee disability is reopened. REASONS FOR REMAND The Board finds that additional development is needed before a decision may be rendered on all three issues on appeal. 2. Entitlement to service connection for a right knee disability is remanded. Here, the Veteran's records suggest that he injured his right knee in a motor vehicle accident prior to entering his second period of service. However, no right knee disability was noted at his August 1972 report of medical examination, conducted at the entrance to his second period of service. Further, no VA examination of the right knee has been conducted. The Board finds that a VA examination is necessary to determine whether the Veteran's claimed right knee disability clearly and unmistakably pre-existed service, and if so, whether it was clearly and unmistakably aggravated by his second tour of active-duty service in the Marine Corps. Even if it is determined that the Veteran's right knee disability did not pre-exist service, it is still necessary to determine whether the right knee disability was caused by any in-service injury or event. 3. Entitlement to a compensable rating for a right fifth finger disability is remanded. 4. Entitlement to a compensable rating for right eyelid, status post cyst excision, is remanded. The Board finds that additional development is needed prior to appellate review of the Veteran's increased rating claims for his service-connected right fifth finger disability and his service-connected right eyelid, status post cyst excision. The Board notes that the last VA examinations of record for these issues were conducted in 2019. In addition, the Board notes that at the November 2021 Board hearing in this matter, the Veteran stated his conditions are worse than currently rated. More specifically, with regard to his right fifth finger disability, he noted loss of grip strength and daily pain. With regard to his right eyelid, status post cyst excision, he noted throbbing pain in his eye. As such, the Board finds that new VA examinations are needed to determine the current severity of the Veteran's right fifth finger disability and right eyelid, status post cyst excision. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Following review of the claims file, including a copy of this remand, the examiner should provide a thorough, well-reasoned opinion as to each of the following: (a) Whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran's right knee disability pre-existed service, specifically his second period of active duty. (b) If so (meaning the Veteran's right knee disability did pre-exist service), whether there is clear and unmistakable evidence (obvious, manifest, or undebatable) that the preexisting right knee disability was not aggravated beyond the natural progression of the condition during active service. (c) If not (meaning the Veteran's right knee disability did NOT pre-exist either period of service), whether it is at least as likely as not that the claimed right knee disability had its onset in service, within one year of service separation, or is otherwise related to service. The examiner must discuss the Veteran's service treatment records that document treatment of his right knee and his reports of continuation of symptomatology thereafter. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, he or she must provide a rationale for doing so. 2. Schedule the Veteran for a VA examination to determine the current severity of his right fifth finger disability. All necessary studies and tests should be conducted. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right finger disability under the applicable rating criteria. 3. Schedule the Veteran for a VA examination to determine the current severity of his right eyelid, status post cyst excision. All necessary studies and tests should be conducted. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right eyelid, status post cyst excision, under the applicable rating criteria. A complete rationale must be given for all opinions and conclusions expressed. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bess, T. 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.