Citation Nr: 1330380 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-03 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for residuals of a right knee injury. 2. Entitlement to service connection for residuals of a right knee injury, currently identified as degenerative arthritis, status post total knee replacement. 3. Entitlement to service connection for chronic headaches, to include as secondary to service-connected disabilities. 4. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1956 to April 1959 and from November 1973 to September 1975. These matters come on appeal to the Board of Veterans' Appeals (Board) from a December 2008 rating decision by the Department of Veterans Affairs, Regional Office located at St. Petersburg, Florida. In that rating decision, the RO reopen the previously denied claim based on new and material evidence, but confirmed and continued the denial of the underlying claim. The RO also denied the Veteran's claim for service connection for chronic headaches, claim for increased rating for compression fracture, T-12, and claim for TDIU. The Veteran appealed. In July 2012, the Veteran testified for the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. The Travel Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2013). Issues Not on Appeal The Veteran also initiated a timely notice of disagreement to the RO's December 2008 denial of his claims for increased rating for deviate nasal septum and for service connection for cervical spine disorder and right shoulder disorder, and continued the denial of his claim for service connection for left knee disorder. However, after the issuance of the December 2009 statement of the case, the Veteran did not submit a substantive appeal with respect to those issues. Instead, on his January 2010 substantive appeal, the Veteran stated that he only desired to continue his appeal with respect to the current matters on appeal. The issues of entitlement to service connection for chronic headaches and for entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a November 1980 rating decision, the RO declined to reopen the Veteran's previously denied claim for entitlement to service connection for residuals of a right knee injury, because the evidence of record failed to demonstrate a current disorder in service or since then. The Veteran was notified of this decision, but he did not appeal that decision. 2. The additional evidence associated with the claims folder subsequent to the RO's November 1980 rating decision relates to an unestablished fact (a current diagnosed right knee disorder as a residual of a right knee injury) that is necessary to substantiate the claim, and raises a reasonable possibility of substantiating that claim. 3. The medical evidence indicates that the Veteran's current right knee disorder, diagnosed as degenerative arthritis, status post total knee replacement, is causally related to his inservice right knee injury. CONCLUSIONS OF LAW 1. The November 1980 rating decision which declined to reopen the previously denied claim for service connection for residuals of right knee injury is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2013). 2. Since the 1980 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for residuals of right knee injury. Therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for establishing service connection for residuals of a right knee injury (diagnosed as degenerative arthritis, status post total knee replacement) have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, the Board notes that the claim described below on appeal is being reopened and granted. Accordingly, the Board will not address whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), as further action is being requested in this case. The Veteran seeks entitlement to service connection for residuals of right knee injury. Implicit in these claims are the contention that new and material evidence which is sufficient to reopen previously disallowed claims of service connection for residual of right knee injury has been received. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The United States Court of Appeals for Veterans Claims has recently stated that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513(1992). Here, the RO originally denied the Veteran's claim for service connection for residuals of right knee injury in a January 1978 rating decision, because the record failed to demonstrate that a current diagnosed right knee disorder shown in service or on recent examination. The Veteran was notified of the RO's denials in a February 1978 letter. The Veteran did not appeal, and the RO's decision became final. 38 C.F.R. §§ 3.104, 20.1103. The Veteran sought to reopen his previously denied claim, but the RO in a November 1980 decision, declined the Veteran's request because no new and material evidence had been received that demonstrated a current diagnosed right knee disorder shown in service or since then. The Veteran did not appeal, and the RO's 1980 decision became the last final decision of record. See 38 C.F.R. §§ 3.104, 20.1103. At the time of the November 1980 rating decision, the evidence of record included the Veteran's service treatment records, which showed that he had a history of a right knee injury when he fell down a flight of stairs, and that he was treated for right knee pain, but no chronic right knee disorder was noted. His September 1975 examination prior to separation shows his lower extremities were evaluated as normal. Shortly after his separation from service, in October 1975, the Veteran filed a claim for service connection for residuals of right knee injury. A May 1976 VA examination reports shows that the Veteran complained of right knee pain and occasional swelling, but clinical evaluation revealed no residuals of a right knee injury. The RO denied the Veteran's claim in 1978 because the evidence failed to reflect a current diagnosed right knee disorder in service or since then. The Veteran sought to reopen his claim in January 1980, but a September 1980 VA examination failed to demonstrate current residuals of right knee injury on clinical examination, and the Veteran's request to reopen was declined in the November 1980 rating decision. The additional evidence received since the November 1980 rating decision includes VA and private treatment records that reflect treatment for right knee pain and current diagnosis of degenerative arthritis. These records also show that the severity of the Veteran's right knee problems progressed, and he required a right total knee replacement in 2010. The record also contains several private medical statements from the Veteran's treating physician, B.G., D.O., a February 2011 private medical statement from the Veteran's treating orthopedic surgeon, O. M., M.D, as well as a December 2011 VA medical statement, which support a medical nexus between the Veteran's current diagnosed right knee disorder and his inservice right knee injury. In addition, the record now contains the Veteran's testimony from the June 2013 Board hearing, in which he reported that he injured his right knee during his period of service and he has continued to experience right knee problems since then. These additional VA and private treatment records and the Veteran's testimony received since the RO's 1980 rating decision relate to an unestablished facts (a current diagnosed right knee disorder that medically linked to his inservice right knee injury), and that are necessary to substantiate the claim. Further, the additional records and testimony are neither cumulative nor redundant, and that they raise a reasonable possibility of substantiating the claim. Based on the foregoing, the Board finds that new and material evidence has been received that meets the requirements to reopen the claim. On that basis, the claim for service connection for residuals of right knee injury is reopened. 38 C.F.R. § 3.156. The Board will now address whether the new evidence of record, when considered in conjunction with the previous evidence of record, contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's current disability and is enough to support a grant of the claim. Here, the Veteran asserts that he has a current right knee disorder as result of an inservice right knee injury. He reports having problems with his knee off and on since this injury. See Board Hearing Tr. at 14 and 15. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed inservice disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical records establish that the Veteran has a current right knee disorder manifested by degenerative arthritis, status post total knee replacement. See a September 2010 private surgery medical report; see also VA and private treatment records since 2002. There is also evidence suggesting inservice incurrence of a right knee injury. A September 1975 service treatment note show that Veteran presented with complaints of right knee pain. He reported a history of injury to the right knee when he fell down a flight of stairs earlier that year. However, none of the subsequent service and post-service treatment records shows a chronic right knee disorder was diagnosed in service or within the first year thereafter. X-rays were taken, but the results were not recorded and no impression of a chronic right knee disorder was given. No right knee problems or chronic disorder was noted on the September 1975 examination prior to separation, or on the post-service VA examinations dated in May 1976 and September 1980, despite the Veteran's complaints of pain and occasional swelling. Finally, there is persuasive medical evidence that the Veteran's current right knee disorder is related to the inservice right knee injury described above. In a February 2011 letter, the private surgeon, O. H., M.D., who performed the Veteran's 2010 right knee total knee replacement surgery, submitted a medical opinion on the Veteran's behalf. The private surgeon noted his medical conclusion was based on a review of the Veteran's September 1975 service treatment record that noted a history of right knee injury, on post-service treatment records and clinical evaluation. The private surgeon concluded that the Veteran's current right knee disorder, degenerative posttraumatic arthritis, status post total knee replacement, was directly caused by and related to an inservice right knee injury sustained from a significant fall. The private surgeon noted in support of his medical conclusion that progression of posttraumatic arthritis is not a constant nature but has extreme variations in its progressive phases. The private surgeon's statement reconciles why the Veteran's right knee posttraumatic arthritis did not first manifest until years after the injury, unlike the progression of his lumbar spine posttraumatic arthritis. The private surgeon opined that the Veteran clearly has degenerative posttraumatic arthritis in his right knee which is causally related to his military service accident many years ago. Also, various statements from his treating physician, B.G., D.O., contain a similar medical conclusion and supporting rational statements. The private surgeon's opinion is afforded high probative value, as it was made after a review of the relevant evidence, including the service treatment records and past private examinations of the Veteran, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with this opinion. As such, service connection for a right knee disorder (diagnosed as degenerative arthritis, status post total knee replacement) is warranted, and the claim is granted in full. ORDER New and material evidence having been received; the previously denied claim for entitlement to service connection for residual of right knee injury is reopened. Service connection for a right knee disorder (diagnosed as degenerative arthritis, status post total knee replacement) is granted. REMAND Headaches The Veteran seeks entitlement to service connection for chronic headaches. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran should be afforded a new VA neurologic examination in order to obtain a medical opinion on the nature and etiology of his claimed headache disorder, to include as proximately due to his service-connected deviate nasal septum and compressed fracture, T-12, disabilities. The Veteran was previously afforded a VA neurologic examination in November 2008. While the VA examiner opined that the Veteran's headaches were less likely than not secondary to his service-connected compression fracture, T-12 disability, the examiner failed to provide a medical conclusion on whether the Veteran's headaches are secondary to his service-connected deviate nasal septum. Pertinently, the record now contains a September 2012 private medical statement from J. A. N., M. D., that "there are reports in the literature which supports the concept that in some cases, a deviated septum can cause 'contact point' headaches," but no statement was provided regarding the likelihood that this is the case of the Veteran's headaches. Also, the November 2008 VA examiner noted that his negative medical conclusion was based on a review of the claims folder, x-ray evidence of bifrontal encephalomalcia and the Veteran's reported onset of headaches in 2006. The examiner failed to address the Veteran's inservice complaints of headaches. A review of the Veteran's service treatment records shows complaints of frontal headaches in 1975 as well as post-service treatment records in December 1975 and in January 1976, shortly after the Veteran's separation from service. However, an April 1976 VA treatment record shows that the Veteran sustained an intervening head injury when he was struck on top of the head with a "2 x 10 board" and lost consciousness. A skull x-ray was normal, and he was treated for laceration of the skull. Also, the record now contains a private medical opinion from G.M.W., M.D. that suggests the Veteran's current headaches are related to his inservice head injury when he sustained a broken nose in 1956, but this opinion is not supported by a rationale statement and does not discuss the intervening 1976 head injury. On remand, a medical opinion should also be obtained that addresses whether the Veteran's current headaches are related to his inservice complaints. TDIU The medical evidence of record indicates that the Veteran is unemployable, at least in part, because of his lumbar spine disability and now awarded service-connected right knee disability. See the report of a December 2007 VA spine examination, as well as an August 2012 private medical statements from G.M.W., M.D. However, it is unclear whether Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) until the Agency of Original Jurisdiction (AOJ) assigns a disability rating for the award of service connection for right knee disability discussed above. As such, the issue of TDIU is deferred pending the rating of the Veteran's now service-connected right knee disability. The Board notes that if the Veteran does not meet the schedular criteria for 38 C.F.R. § 4.16(a) after the assignment of the rating for service-connected right knee disability and the resolution of the claim for service connection for headache, then the AOJ should consider the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Seek the Veteran's assistance in obtaining any outstanding records of pertinent VA and private medical treatment and associate those records with the claims folder. 2. Schedule the Veteran for a VA neurologic examination with an appropriate examiner. Request that the examiner review the claims file and note review of the claims file in the examination report. The examination report should include a discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in the report. After a review of the record and based on the findings from clinical examination, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current headache disorder is: (1) related to his period of service, to include a 1956 head trauma when he sustained a broken nose, or caused by service, or (2) caused or aggravated by service-connected deviate nasal septum disorder. A detailed rationale should be provided for all opinions. In doing so, the examiner should reconcile any conflicting medical evidence of record, including the 2012 medical statement. 3. Thereafter, the RO/AMC should review the claim folder to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO/AMC should then readjudicate the service connection claim and the claim for TDIU, to include extraschedular considerations under 38 C.F.R. § 4.16(b). If any benefit sought remains denied, the RO/AMC should issue an appropriate Supplemental Statement of the Case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs