Citation Nr: 23022012 Decision Date: 04/11/23 Archive Date: 04/11/23 DOCKET NO. 17-50 469 DATE: April 11, 2023 ORDER New and material evidence having been received, the petition to reopen a claim for service connection for a left knee condition is reopened; to that extent, the appeal is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT An unappealed April 2010 rating decision denied the claim for service connection for a left knee condition; the evidence associated with the claims file subsequent to the April 2010 rating decision is not cumulative and/or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee condition. CONCLUSION OF LAW The April 2010 rating decision that denied the claim for service connection for a left knee condition is final; new and material evidence have not been received sufficient to reopen claim of entitlement to service connection for a left knee condition. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to August 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing conducted in September 2021. A transcript of the hearing is of record. The Veterans Law Judge who conducted the September 2021 hearing is no longer employed by the Board. The Veteran was informed that the Veterans Law Judge who conducted the September 2021 hearing was no longer employed by the Board and was offered the opportunity for a new hearing in a February 2023 letter. In a March 2023 response, the Veteran indicated that he did not wish to appear for a new Board hearing and that he would like the Board to consider his claim based upon the evidence of record. The Board will therefore proceed with is adjudication. New and material evidence having been received, the petition to reopen a claim for service connection for a left knee condition is reopened; to that extent, the appeal is granted. As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can neither 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In the instant case, the Veteran's claim for service connection for a left knee condition was originally denied in an April 2010 rating decision as there was no current medical evidence showing that a chronic left knee disease/disability exists favorably related to active military service, supported by a medical opinion of relationship. Evidence considered in the April 2010 rating decision included the Veteran's service treatment records and post-service treatment records. The Veteran was notified of this decision in an April 2010 letter. No further communication regarding his claim of entitlement to service connection was received until September 2015, when VA received his petition to reopen such claim. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the April 2010 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. 38 C.F.R. § 3.156(c). Evidence received since the April 2010 rating decision includes post-service VA treatment records, a January 2017 VA etiology opinion and the Veteran's testimony at a February 2021 Board hearing. The Board finds that the evidence added to the record is new, as it was not previously considered by the VA, and they are not duplicative and material as it specifically addresses the reason the claim was previously denied. Additionally, the Board finds that the evidence submitted since the April 2010 rating decision addresses the reason for the prior denial; notably, the new evidence speaks to the etiological relationship between a left knee condition and service. Therefore, the Board finds that new and material evidence has been presented sufficient to reopen the Veteran's claim of entitlement to service connection for a left knee condition. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, supra. REASONS FOR REMAND Entitlement to service connection for a left knee disorder is remanded. The Veteran underwent a VA examination in January 2017. The examiner found the Veteran's current left knee disorder was not at least as likely as not due to service. The examiner noted that the interim available medical records were silent for any left knee complaints, medical evaluations, or treatment from December 1984 until the Veteran presented with left knee pain in August 1998, 12 years after service separation. However, the VA examiner failed to address the VA treatment records dated in December 1988 in which the Veteran complained of left knee pain and reported intermittent pain since his 1984 in-service left knee injury. An etiology opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, regrettably, the claim must be remanded for an addendum opinion that adequately considered the Veteran's documented medical history and adequately consider the Veteran's self-reported history of disability. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).2. 2. Following the receipt of outstanding records, forward the Veteran's claims file, along with a copy of this Remand, to an appropriate clinician to obtain an addendum etiology opinion regarding the Veteran's claimed left knee disorder. Any indicated evaluations, studies, and tests should be conducted. The need for further in-person examination is left to the discretion of the examiner. The examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's present left knee disorder had its onset during service or are otherwise related to such service, to include a left knee injury during service? The examiner should specifically address the December 1978 complaints of a left knee injury while running and the November 1984 complaints of a twisted left knee while playing volleyball. The examiner should address the impact, if any, of the complaints of intermittent left knee soreness since an in-service injury in 1984 in a December 1988 VA treatment note. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner The examiner should address the impact, if any, of the complaints of intermittent left knee soreness since an in-service injury in 1984 in a December 1988 VA treatment note. must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) ? The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.