Citation Nr: 18132333
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-08 146
DATE:	September 6, 2018
ORDER
As new and material evidence having been received to reopen a claim for service connection for a bilateral knee condition, the claim is reopened.  
REMANDED
Entitlement to service connection for a bilateral knee condition is remanded.
FINDING OF FACT
Evidence associated with the claims file since the March 2000 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee condition.
CONCLUSION OF LAW
Evidence received since the March 2000 rating decision, the last final denial, which denied service connection for a bilateral knee condition is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 3.160 (d), 20.1103 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from January 1997 to May 1998.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of August 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
The August 2012 rating decision confirmed and continued the denial to reopen the Veteran’s claim for service connection for a bilateral knee condition, finding no new and material evidence was presented.  The Statement of the Case (SOC), dated in December 2014, reopened the claim but denied it on its merits.
The Veteran testified at a decision review officer (DRO) hearing in April 2014 and at a Board hearing in April 2018, before the undersigned Veterans Law Judge (VLJ).  Copies of the transcripts are of record. The VLJ agreed to hold open the record for 30 days to allow the Veteran time to supplement the record with additional evidence. As to the additional evidence that has been associated with the claims file after the expiration of the 30 days, the Veteran through his representative has submitted a waiver of AOJ review.
New and Material evidence has been received to reopen a claim for service connection for a bilateral knee condition. 
In March 2000, the AOJ denied the Veteran’s claim for service connection for a bilateral knee condition, citing that the claim was not “well-grounded.”  The Veteran did not submit new and material evidence within one year of its promulgation of the March 2000 rating decision. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any “subsequent decision based on such evidence relate[s] back to the original claim”); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim”).
Accordingly, the March 2000 rating decision is final regarding the issue of entitlement to service connection for a bilateral knee condition. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.160 (d), 20.200, 20.302, 20.1103 (2017). 
The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. 38 U.S.C. § 5108 (2012). 
New evidence means existing evidence not previously submitted to agency decision makers. 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 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. 38 C.F.R. § 3.156 (a) (2017). 
In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 
New evidence raises a reasonable possibility of substantiating the claim if when considered with the evidence already of record, it would trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). 
The evidence received since the March 2000 rating decision includes testimonies presented at April 2014 DRO hearing, as well a March 2018 Board hearing, a May 2014 VA examination, and treatment records, and a statement from his wife, T. B. The Board finds that the new evidence received since the March 2000 rating decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim because it alleges continuity of symptoms since service. Thus, the threshold for reopening a claim has been met. Shade, 24 Vet. App. 110. Therefore, since the new evidence is material, the Veteran’s claim for service connection for a bilateral knee condition is reopened.
REASONS FOR REMAND
Service connection for a bilateral knee condition is remanded
The Veteran contends that he has a bilateral knee disability as a result of an in-service injury.  He has been diagnosed with tendinitis.  He testified at his Board hearing that his “Tanker Syndrome” was a direct result of his banging his left knee in the tank when the tank hit bumps in the road. The medications he takes for his service-connected disabilities, as well as the over-the-counter pain medications, masks the seriousness of the left knee pain.  Further, he testified that because of the issues with the left knee, he is often forced to overcompensate with the right knee, therefore damaging it.  
The Veteran’s service treatment records (STRs) dated in April 1998 show a complaint of left knee pain. The Veteran reported an injury to the left knee from lifting camouflage. He described the pain as aggravating.  The attending clinician noted that the Veteran was unable to stand upright, apply pressure or straighten out the knee.
A post-service entry dated in November 1998 (within six months of his leaving active duty service), indicates that the Veteran was seen for a complaint of “pain in both knees, since February 1998.” 
In April 1999, less than one year out of service, the Veteran filed a claim for service connection for a bilateral knee condition. A February 2000 report of contact noted that the Veteran indicated that he hurt his knees in service and was told that “he probably had deteriorating cartilage.”  His left knee was the worst, but his right knee also hurt. He explained that while in service an X-ray was not performed because his unit was heading to Bosnia and because his knees were bothering him, they did not want to risk shipping him out, only to have to bring him back home. A March 2000 rating decision denied his claim for service connection for a bilateral knee condition, finding his claim not well-grounded.
In September 2001, he was seen for complaints of a slip and fall, which he indicated landed him on his left shoulder and left knee. He complained of pain in the left knee with walking. He was diagnosed with a contusion to the left knee. Laboratory testing revealed the knee was within normal limits. 
Clinical notes dated in September 2004, note that the Veteran had a degenerative joint disease (DJD) of the [left] knee. In December 2005, he was educated on knee support and was fitted for a knee sleeve. In January 2007, the Veteran tested “positive for arthritis in [the] left knee” and was given NSAIDs.
The Veteran was afforded a VA examination in May 2014.  The examiner proffered a negative nexus opinion.  He explained that the Veteran’s:
bilateral knee pain predates his service record accidents on [April] 21,1998, hurting his left knee while lifting and on [April] 27, 1998, banging his right knee on a car door.  X-rays negative for DJD of bilateral knees. PGH VA records reveal the [V]eteran suffered a fall on September 10, 2001. He tripped and injured his left knee when he fell to the ground.  He reports a further injury to his left knee approximately [nine] years ago, [in] 2006. His knee gave out when he was up on top of a truck.  He fell into a hole, and his left knee was pulled. These falls may have caused injury resulting in the pain he has today.
The Board finds this opinion inadequate because it does not address the Veteran’s lay assertions that he has had problems with his knees since service.  Once VA affords a veteran a medical examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  A remand is necessary to afford the Veteran an adequate examination, with an opinion and a supporting rationale.
Accordingly, the matter is REMANDED for the following action:
1. Provide the Veteran’s claims file to a qualified clinician so that a supplemental opinion may be provided for his bilateral knee condition. A new examination is only required if deemed necessary by the examiner.
The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
Although an independent review of the claims file is required, the Board calls the examiner’s attention: 
A.	STR dated in April 1998 indicating complaint of left knee pain, from lifting camouflage.
B.	An April 1999 claim for service connection for a bilateral knee condition. 
C.	A February 2000 report of contact with the Veteran.
D.	A November 1998 entry, indicating that the Veteran was seen for a complaint of “pain in both knees since February 1998.”
E.	A September 2001 entry, indicating complaints of a slip and fall, which resulted in pain in the left knee with walking.
F.	A September 2004 entry, noted that the Veteran had DJD of the left knee.
G.	A January 2007, indicating that the Veteran was “positive for arthritis in the left knee.”
H.	The Veteran’s April 2014 DRO testimony.
I.	 The Veteran’s April 2018 Board testimony where he stated that he has had problems with his knees persistently since service. 
J.	The May 2018 statement from the Veteran’s his wife, T. B., where she states that the Veteran has always had problems with his knees.
In providing the requested opinion, the examiner must specifically address the Veteran’s lay assertions. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. 
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee condition began during active service or is related to an incident of service, or if arthritis is diagnosed, began within one year after discharge from active. 
IF AND ONLY IF, the examiner concludes that only the left knee condition began in service, opine as to the following:

a.	Whether the right knee condition was caused by the left knee condition. 
b.	Whether the right knee condition was aggravated beyond its natural progression by the left knee condition. 
The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.
2. Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.
 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Stevens, Associate Counsel

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