Citation Nr: 22018128 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-36 063 DATE: March 28, 2022 ORDER New and material evidence has been received sufficient to reopen a previously denied claim of service connection for a right knee disability, and to that extent only, the claim is granted. New and material evidence has been received sufficient to reopen a previously denied claim of service connection for a left knee disability, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection a left knee disability is remanded. FINDINGS OF FACT 1. In a June 2007 rating decision, the Regional Office (RO) denied service connection for a left knee disability, and the Veteran timely filed a July 2007 notice of disagreement (NOD). In April 2009, the RO issued a statement of the case (SOC), the Veteran did not substantively appeal, and the June 2007 rating decision became final. 2. In an August 2008 rating decision, the RO denied service connection for a right knee disability. The Veteran did not timely appeal this decision, and the August 2008 rating decision became final. 3. In the April 2014, November 2014 and March 2015 rating decisions, the RO readjudicated the Veteran's claims for his left and right knee disabilities. Within one year of these rating decisions, the Veteran submitted a March 2015 NOD regarding the denials of service connection for his right and left knee disabilities and a March 2015 VA examination report was received within one year of the April and November rating decisions; these rating decisions did not become final. 4. The evidence received since final June 2007 and August 2008 rating decisions was not previously of record, and relates to an unestablished fact necessary to substantiate the Veteran's claims of service connection for a right knee disability and for a left knee disability. CONCLUSIONS OF LAW 1. The June 2007 and August 2008 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for reopening a claim of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision. The Veteran was scheduled for a Travel Board hearing before the Board on November 4, 2021; however, the record shows that the Veteran was a no show for the scheduled hearing. New and Material Request to Reopen Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1100. Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.52, 20.200. If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c). Likewise, for legacy appeals, if the Veteran does not timely perfect an appeal to the Board following the RO's issuance of a Statement of the Case (SOC), the rating decision on which the SOC is based becomes final. 38 C.F.R. §§ 19.20, 19.22, 19.52. The exception to this rule of not reviewing the merits of a finally denied claim 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. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is required to reopen a final claim. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. For legacy appeals, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson, 265 F.3d 1366, 1369. 1. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for right and left knee disabilities. New and material evidence has been submitted sufficient to reopen the claims of service connection for a right knee disability and for a left knee disability. In the August 2008 rating decision, the Veteran was denied service connection for right total knee arthroplasty on the basis that there was no evidence that his right knee disability is due to or aggravated by his military service. The Veteran did not timely appeal this decision within a year of notification, and the August 2008 rating decision became final. In the June 2007 rating decision, the Veteran was denied service connection for status post left knee arthroplasty with mild arthrofibrosis on the basis that there was no evidence of record showing that the condition began in or was a result of service. The Veteran timely appealed the June 2007 rating decision within a year of notification with a July 2007 notice of disagreement (NOD). In April 2009, the RO issued a statement of the case (SOC), continuing the denial of the claim and noting that the injury was an acute and transitory condition with no permanent residuals. The Veteran did not substantively appeal the April 2009 SOC; thus, the June 2007 rating decision became final. On April 15, 2011, the Veteran filed a claim to reopen his claim for service connection for both knees. In an August 27, 2013, statement in support of claim, the Veteran requested reconsideration for his claims for his bilateral knee disabilities. In the April 2014, November 2014, and March 2015 rating decisions, the RO readjudicated the Veteran's claims for service connection for left and right knee disabilities. In March 2015, a VA examination report was received regarding the bilateral knees and the Veteran submitted a timely NOD. Accordingly, these rating decisions did not become final. The evidence received since the June 2007 and August 2009 final rating decisions, which was not previously taken into consideration, includes VA treatment records, lay statements, and a March 2015 VA examination. This evidence is neither cumulative or redundant of evidence previously considered, and it relates to an unestablished fact necessary to substantiate the claim for service connection for left and right knee disabilities. Accordingly, the evidence is sufficient to reopen the claims of service connection currently on appeal. REASONS FOR REMAND 2. Entitlement to service connection for right total knee arthroplasty 3. Entitlement to service connection for status post left knee arthroplasty with mild arthrofibrosis The Board finds that additional development is needed prior to final adjudication of the issues of entitlement to service connection for a right knee disability and for a left knee disability. In the February 2022 appellate brief, the Veteran, through his representative, asserted that his right and left knee disabilities are secondary to his service-connected right foot pes planus condition. The Veteran underwent a VA examination in March 2015, and the VA examiner provided negative nexus opinions, indicating that the bilateral knee disabilities were not directly related to active service. However, the VA examiner's rationale was otherwise conclusory indicating that the Veteran's knee disabilities were related to his work as a mechanic and the examiner did not consider whether these disabilities were secondary to his service-connected right foot pes planus. Accordingly, remand is warranted for a new VA examination and opinion consistent with the directives herein. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his right and left knee disabilities. The examiner must review the claims file in conjunction with the examination. (a.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left and/or right knee disability is directly related to active service and/or had its onset during service. (b.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left and/or right knee disability is caused or aggravated by his service-connected right foot pes planus. The examiner must support any opinion rendered with a detailed rationale. If the examiner cannot provide the above opinion, the examiner is advised that they must explain why the requested opinion cannot be provided. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.