Citation Nr: 22019537 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-64 249 DATE: April 1, 2022 ORDER Petition to reopen a claim of entitlement to service connection for right knee disability is granted. Petition to reopen a claim of entitlement to service connection for left knee disability is granted. Petition to reopen a claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The March 2010 Board decision that declined to reopen service connection for right knee disability and denied service connection for a left knee and low back disability was not appealed and is final. 2. Evidence received since the March 2010 Board decision is new and material. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim for service connection for a left knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the U.S. Army Reserves and had active duty for training (ACDUTRA) from May 1976 to June 1976 and from April 1977 to May 1977. She testified at a Board hearing in November 2021 before the undersigned Veterans Law Judge. PETITION TO REOPEN Generally, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), "new" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means 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 cannot be cumulative or 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. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). 1. Petition to reopen a claim of entitlement to service connection for right knee disability. 2. Petition to reopen a claim of entitlement to service connection for left knee disability. 3. Petition to reopen a claim of entitlement to service connection for a low back disability. The Veteran's claim for a right knee disability was initial denied in a June 1991 rating decision, and the Veteran was so notified. The Veteran did not appeal, nor was new evidence submitted within a year of notification of the rating decision. As such, the decision became final. The claims for service connection for a bilateral knee and low back disabilities were denied in a May 2007 rating decision, after the claim for the right knee was reopened. The Veteran followed the appeal with a Notice of Disagreement, was issued a Statement of the Case in January 2008, and completed a Substantive Appeal in March 2008. In a March 2010 decision, the Board denied the claims. The Veteran was notified but did not appeal. Therefore, this decision, too, became final. Most recently, the Veteran's petition to reopen her claim for service connection for bilateral knee and low back disabilities were denied in an April 2014 rating decision because there was no new and material evidence to indicate a link between the conditions and service. The Veteran filed a timely Notice of Disagreement. The Veteran continued her appeal to the Board and was afforded a November 2021 Board hearing. The pertinent evidence added to the record since the last final decision in March 2010 is a March 2014 private positive nexus opinion, the Veteran's testimony during the Board hearing, VA and private treatment records and lay statements from the Veteran, her daughter and a friend who stationed with the Veteran during service. As noted, for the purposes of reopening a claim, the credibility of the newly submitted evidence is presumed. As such, the Board finds that the low threshold requirement for new and material evidence has been satisfied and the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. 3. Entitlement to service connection for a low back disability, to include as secondary to a right knee disability, is remanded. During the Board hearing, the Veteran testified that she injured both knees and her back during a fall in service. She was treated but did not receive full follow up until returning to the U.S. Since then, she has received ongoing VA and private treatment. VA and private treatment records have not been updated recently. As such, a remand is necessary to obtain any outstanding treatment records that could be relevant to the Veteran's claims. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Zubair Farooqui. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain any outstanding VA treatment records from 2017 to present. 3. Obtain opinions as to the etiology of the bilateral knee and back disabilities--to include an opinion on direct service connection for all disabilities and opinions as to whether the left knee and back disabilities were caused or aggravated by her right knee disability. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.