Citation Nr: 22048751 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 19-25 749 DATE: August 26, 2022 ORDER New and material evidence has been received to reopen the claim for service connection for bilateral knee strain, and the claim is reopened. Entitlement to service connection for alcoholism has been withdrawn and is dismissed. REMANDED Entitlement to service connection for right knee strain, to include osteoarthritis and meniscal tear, is remanded. Entitlement to service connection for left knee strain, to include osteoarthritis, is remanded. FINDINGS OF FACT 1. In a January 2002 rating decision, the agency of original jurisdiction (AOJ) denied service connection for bilateral knee strain based on a finding that there was no diagnosed current chronic disabling condition. 2. Evidence received after the January 2002 rating decision denying service connection for bilateral knee strain shows evidence of chronic bilateral knee conditions, which relates to an unestablished fact necessary to substantiate the claim. 3. On December 15, 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the appellant that he requested to withdraw the appeal in connection with the claim for entitlement to service connection for alcoholism. CONCLUSIONS OF LAW 1. The January 2002 rating decision denying service connection for bilateral knee strain is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for bilateral knee strain on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for withdrawal of the appeal for service connection for alcoholism have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to November 2001. In December 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-20 (2010). 1. New and material evidence has been received to reopen the claim for service connection for bilateral knee strain, and the claim is reopened. The claim for service connection bilateral knee strain was denied in a January 2002 rating decision based on a finding that the Veteran did not have a diagnosed current chronic disabling condition. The Veteran was notified of this determination in a January 2002 letter, which included information about the Veteran's appeal rights. In March 2002, the Veteran appealed this decision by filing a Notice of Disagreement. In a July 2002 Statement of the Case (SOC), the AOJ denied the claim for service connection bilateral knee strain. The Veteran did not appeal this decision. In November 2013, the Veteran submitted a VA Form 21-526b, Veteran Supplemental Claim requesting reconsidering of the denial of the claim for service connection for bilateral knee strain. This form was not submitted within one year of the January 2002 rating decision or within 60 days of the July 2002 SOC. The Veteran did not properly perfect an appeal or submit new and material evidence within one year of the January 2002 rating decision to prevent the January 2002 rating decision from becoming final. Thus, the January 2002 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the January 2002 rating decision included the Veteran's service treatment records and a July 2001 VA examination. The evidence added to the file since the last final decision are VA treatment records, private treatment records, and Board hearing testimony. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in January 2002. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. Specifically, the December 2021 testimony that documents that the Veteran continued to have bilateral knee pain after the in-service injuries to the present. This relates to an unestablished fact necessary to substantiate the claim. Thus, the claim for service connection for bilateral knee strain has been reopened, and the Board will address the reopened claim in the remand portion of the decision. 2. Entitlement to service connection for alcoholism. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, in December 2021, prior to the promulgation of a decision in the appeal, the Veteran testified before the Board that a withdrawal of his appeal concerning service connection for alcoholism is requested. As such, the Veteran has withdrawn the appeal as to this issue, and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for right knee strain, to include osteoarthritis and meniscal tear, is remanded. 2. Entitlement to service connection for left knee strain, to include osteoarthritis, is remanded. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is evidence that the Veteran has osteoarthritis of the bilateral knees, he was seen in-service for bilateral knee injuries, the Veteran has testified to continued bilateral knee pain since service. Lastly, there is no medical opinion regarding a nexus between the current bilateral knee osteoarthritis and the in-service bilateral knee injuries. Therefore, all the prongs of McLendon are met, and the VA must provide a VA examination and/or medical opinion to consider service connection. As such, a remand is necessary to acquire a medical opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of the bilateral knee disabilities. After reviewing the entire claims file, including the Veteran's medical treatment records and a copy of this remand, the examiner is asked to opine as follows: Is it at least as likely as not that the Veteran's bilateral knee disabilities, to include osteoarthritis and right knee meniscal tear, are related to active service? In answering the above, the examiner MUST review the claims file and discuss the Veteran's multiple in-service bilateral knee injuries and his contention that he has continued to experience bilateral knee pain since service. A lack of contemporaneous medical evidence and/or a lack of symptoms within one year of service discharge are not an adequate bases to find these disabilities are not related to service. A full rationale must be provided for all opinions rendered. The examiner is reminded that the term "as likely as not" means likelihood is at least approximately balanced or nearly equal, if not higher. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.