Citation Nr: A24081069 Decision Date: 12/05/24 Archive Date: 12/05/24 DOCKET NO. 230217-324696 DATE: December 5, 2024 ORDER Readjudication of the service connection claim for a right knee condition is warranted. Entitlement to service connection claim for a right knee condition, to include as secondary to the service-connected left knee disability, is remanded. FINDINGS OF FACT 1. The Veteran did not file a timely appeal on the February 2022 rating decision by the agency of original jurisdiction (AOJ) that denied the Veteran's entitlement to service connection for a right knee condition, and it became final. 2. New evidence was received after the February 2022 final rating decision for service connection claim for a right knee condition, including a March 2022 orthopedic consult note, that is relevant to the Veteran's service connection claim for a right knee condition. CONCLUSION OF LAW The criteria for readjudication of service connection claim for a right knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.2501, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to September 2015. The Board of Veterans' Appeals (Board) notes that the agency of original jurisdiction (AOJ) previously denied the Veteran's service connection claim for a right knee condition in a February 2022 rating decision. In July 2022, the Veteran filed a supplemental claim for service connection claim for a right knee condition. In an October 2022 rating decision, the AOJ decided that the Veteran's service connection claim for a right knee condition remains denied by finding that the evidence submitted is not new and relevant. The Veteran appealed this decision and elected the Direct Review docket in the February 2023 VA Form 10182, Decision Review Request: Board Appeal. Therefore, the Board may only consider the evidence of record at the time of the October 2022 rating decision and any evidence obtained after the time of that decision will not be considered. 38?C.F.R. § 20.301. In the February 2022 rating decision, the AOJ denied the Veteran's service connection claim for a right knee condition and found that the evidence does not demonstrate a causative or aggravating relationship between the Veteran's right knee condition and his active duty service or other service-connected condition. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "New" evidence is evidence not previously part of the actual record before agency adjudicators and "relevant" evidence is information that tends to prove or disprove a matter at issue. 38 C.F.R. § 3.2501(a)(1). In July 2022, the Veteran filed a supplemental claim for the previously denied service connection claim for a right knee condition. The Veteran is seeking service connection on direct and/or secondary basis. To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. Here, the Board notes that the existence of the Veteran's current right knee disability and an in-service incurrence of the disability have been conceded by the AOJ. Also, the Board notes that the Veteran is currently service-connected for left knee patellofemoral pain syndrome. Thus, the matter at issue is whether there is a nexus between the Veteran's claimed right knee condition and active duty service and/or service-connected left knee condition. The Board notes that a March 2022 VA orthopedic consult note was received since the February 2022 rating decision. This evidence was not previously part of the actual record before the AOJ adjudicators at the time of the February 2022 rating decision. Also, it contains information that tends to prove or disprove a nexus between the Veteran's claimed right knee condition and active duty and/or service-connected left knee condition. Thus, the Board finds that VA has received new and relevant evidence for the Veteran's service connection claim for a right knee condition since the February 2022 final rating decision. Consequently, readjudication of the Veteran's service connection claim for a right knee condition is warranted. 38 U.S.C. § 7105; 38 C.F.R. § 3.156, 3.2501, 20.1103. REASONS FOR REMAND However, the Board finds that the Veteran's service connection claim for a right knee condition should be remanded to correct a duty to assist error that occurred prior to the October 2022 rating decision on appeal. Here, the Veteran underwent a VA examination for knee conditions in July 2021 and medical opinions on the matter were obtained in November 2021. For one of the opinions, the November 2021 VA examiner was asked to opine on whether the Veteran's right knee condition was aggravated beyond its natural progression by his left knee patellofemoral pain syndrome. The examiner provided a negative opinion with the following rationale: Patient separated on September 27, 2015. Based on the review of the evidence of record, there is insufficient evidence to establish any continuity of symptoms with military service. On C&P knee exam of July 7, 2021, patient himself explicitly states that his right knee condition started half a decade after separation in November 2020 as a result of twisting his knee, slipping, and falling on ice. It has nothing to do with his left knee. The Board finds that this rationale does not address whether the Veteran's claimed right knee condition is at least as likely as not aggravated beyond its natural progression by his service-connected left knee disability. Moreover, the Board notes that the examiner provided the exact same rationale for the opinion on whether the Veteran's right knee condition is proximately due to or the result of his service-connected left knee disability. The Board notes that no new exam or opinion was obtained following the Veteran's Supplemental Claim in July 2022, despite the inadequacies noted above. Accordingly, the matter is REMANDED for the following action: Obtain a medical opinion by an appropriate clinician regarding the Veteran's service connection claim for a right knee condition. If the examiner determines that an updated examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran's claims file and a copy of this REMAND order before rendering the requested opinion. The examiner must opine whether the Veteran's current right knee condition is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his service-connected left knee disability. The examiner must provide a complete written rationale for any opinion offered. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.