Citation Nr: 22043631 Decision Date: 08/01/22 Archive Date: 08/01/22 DOCKET NO. 18-34 508 DATE: August 1, 2022 ORDER New and material evidence having been received, the service connection claim for degenerative joint disease bilateral knee disability (bilateral knee disability) is reopened. New and material evidence having been received, the service connection claim for right shoulder impingement syndrome (right shoulder disability) is reopened. REMANDED Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. An unappealed September 2013 rating decision denied the Veteran entitlement to service connection for a bilateral knee disability. The evidence received since the September 2013 rating decision when considered by itself or in connection with the evidence previously assembled, related to unestablished facts necessary to substantiate the claim, and raises the possibility of substantiating the Veteran's service connection claim for a bilateral knee disability. 2. An unappealed September 2013 rating decision denied the Veteran entitlement to service connection for a right shoulder disability. The evidence received since the September 2013 rating decision when considered by itself or in connection with the evidence previously assembled, related to unestablished facts necessary to substantiate the claim, and raises the possibility of substantiating the Veteran's service connection claim for a right shoulder disability. CONCLUSIONS OF LAW 1. The evidence received since the final September 2013 rating decision is new and material and the claim of entitlement to service connection for a bilateral knee disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 3.156. 2. The evidence received since the final September 2013 rating decision is new and material and the claim of entitlement to service connection for a right shoulder disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from September 1972 to June 1976, February 2004 to April 2005, and from July 2011 to July 2012. The Veteran also had National Guard and Reserves service. This matter is on appeal to the Board of Veterans' Appeals (Board) from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2022, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. New and Material Evidence 1. Bilateral knee disability and right shoulder disability Reopening a claim for service connection which was previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to VA, and "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). 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. Id. In the September 2013 rating decision, the Veteran's claim for service connection for bilateral knee disability and right shoulder disability were denied. The RO found that both disabilities pre-existed the active-duty period that started in February 2004 and that the evidence of record did not reflect that either disability had permanently aggravated beyond a normal progression during this active duty period. The Veteran failed to submit a Notice of Disagreement within the required period nor did the Veteran submit additional evidence within a year after the rating decision was issued. As such, the September 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the September 2013 rating decision, the Veteran testified before the Board and provided new and in depth lay statements regarding both claims. The Board finds this evidence is new because it was not considered at the time of the prior final denial of the Veteran's claims, and the new evidence is material because it raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral knee disability and right shoulder disability. Therefore, the Veteran's claim for service connection for bilateral knee disability and right shoulder disability is reopened and must be considered on its merits. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee disability and right shoulder disability is remanded. The Board finds that a remand is warranted to obtain new and adequate VA examinations and medical opinions for both disabilities. While the June 2013 VA examination recorded the Veteran's medical history regarding his knee and shoulder disabilities, they were not thorough reports of history according to the Veteran's testimony during the May 2022 Board hearing. Additionally, the examiner used the wrong legal standard when claiming that the Veteran's disabilities were not permanently aggravated. The standard is any increase in severity. During the Board hearing, the Veteran provided in detail a report of his symptoms and injury. A new examination is warranted to make sure that the full report of his symptoms are taken into consideration before opining on whether the Veteran's disabilities were aggravated during that period of service. Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, while the Veteran submitted a private medical opinion after the Board hearing, the private opinion does not use the correct standard when opining. The examiner did not use the correct standard of whether the Veteran's pre-existing disabilities were aggravated beyond their natural progression. Thus, it is necessary to obtain a new VA examination and medical opinion that adequately addresses the Veteran's disabilities, his lay statements, and uses the correct standard. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his bilateral knee and right shoulder disabilities. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Did the Veteran's bilateral knee disability, which existed prior to the February 2004 to April 2005 period of service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? The increase in severity does not need to be permanent. b. Did the Veteran's right shoulder disability, which existed prior to the February 2004 to April 2005 period of service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? The increase in severity does not need to be permanent. c. The examiner must document and consider the Veteran's report of history during the examination. Moreover, the examiner should rely on the Veteran's May 2022 Board hearing testimony to supplement any lay statements that the Veteran reports during the examination. d. In providing the requested opinions, consider the Veteran's description of his symptoms prior to his deployment in 2004, in-service injury and symptoms, and his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the aggravation of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.