Citation Nr: 1414435 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 08-36 940A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to October 15, 2008, for right knee degenerative joint disease (DJD) with anterior cruciate ligament (ACL) deficiency (right knee disability). 2. Entitlement to a rating in excess of 20 percent, since October 15, 2008, for right knee degenerative joint disease (DJD) with anterior cruciate ligament (ACL) deficiency. 3. Entitlement to service connection for left shoulder disability. 4. Whether new and material evidence has been received to reopen a claim of service connection for lumbosacral spine disability. 5. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability. 6. Entitlement to service connection for lumbosacral spine disability, to include as secondary to service-connected right knee disability. 7. Entitlement to service connection for left knee degenerative joint disease (DJD), to include as secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1986 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in which the RO denied an increased rating for right knee DJD, denied service connection for a left shoulder disability, and denied reopening claims for service connection for lumbosacral disability and left knee disability. In a November 2008 rating decision, during the appeal process, the RO awarded an increased rating of 20 percent, effective October 15, 2008, for right knee DJD, and reopened and denied service connection for a left knee disability. The Board has reviewed the Veteran's physical claims file and both the Veterans Benefits Management System and "Virtual VA" files to ensure a complete review of the evidence in this case. The issues of lumbosacral disability and left knee DJD 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. Prior to October 15, 2008, the Veteran's right knee disability manifested as abnormal gait; decreased movement when ambulating; instability; pain; swelling on the right side; mild crepitus; flexion limited to 70 degrees with additional limitation due to pain and weakness; Drawer test and McMurray's test within normal limits; and X-ray findings within normal limits. 2. From October 15, 2008, the Veteran's right knee disability manifested as giving way and weakness; swelling; tenderness; guarding of movement; moderate subluxation; flexion limited to 100 degrees with additional limitation after repetitive use due to pain, fatigue, weakness, lack of endurance; X-ray findings within normal limits; and pivot shift sign elicited and anterior drawer sign positive. 3. The weight of the evidence does not demonstrate a current left shoulder condition resulting from an injury incurred in service. 4. The Veteran did not file a notice of disagreement to the November 1997 rating decision denial of service connection for lumbosacral disability (claimed as low back pain) and left knee disability (claimed as left knee condition) that found that no permanent residual or chronic disability subject to service connection was shown in service or since service separation. 5. Evidence received since the November 1997 rating decision relates to a previously unestablished fact of a current disability necessary to substantiate the service connection claims for a lumbosacral spine disability and left knee disability. CONCLUSIONS OF LAW 1. Prior to October 15, 2008, the criteria for a rating, in excess of 10 percent, for right knee DJD with ACL deficiency have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261, 5262, 5263 (2013). 2. From October 15, 2008, the criteria for a rating, in excess of 20 percent, for right knee DJD with ACL deficiency have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261, 5262, 5263 (2013). 3. Left Shoulder disability was not incurred or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. 4. The November 1997 rating decision denying service connection for a lumbosacral spine disability and a left knee disability became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.201, 20.302(a), 20.1103 (2013). 5. New and material evidence has been received to reopen service connection for a lumbosacral spine disability. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2013). 6. New and material evidence has been received to reopen service connection for left knee disability. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that, in response to an application to reopen, VA is required to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Here, the RO provided notice to the Veteran in November 2005, prior to the initial adjudication of the claim in February 2006. The Veteran was notified of the evidence not of record that was necessary to substantiate a claim for an increased rating of right knee DJD and service connection for a left shoulder disability, as well as of VA and the Veteran's respective duties for obtaining evidence. The November 2005 notice letter also provided the bases of the previous denials of the claims for service connection of a lumbosacral disability and left knee DJD. The notice informed the Veteran that the back and left knee were previously denied because no permanent residual or chronic disability was shown in service or since service separation. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the service connection claims. In addition, the Veteran was provided Vazquez-Flores notice in September 2008. Vazquez-Flores, 580 F.3d at 1270. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. VA and private treatment records, service treatment records, submitted personnel records, and statements by the Veteran have been associated with the claims file. In September 2008 VA requested that the Veteran complete and return VA Form 21-4142, Authorization and Consent to Release Information for each private health care provider; however, no response was received. The Veteran was provided a statement of the case in November 2008 and a supplemental statement of the case in August 2009. The November 2008 statement of the case notified the Veteran that VA Form 21-4142 had not been received for any private treatment providers. The Veteran also was provided an opportunity to testimony at a Travel Board hearing in February 2014, but did not appear for the hearing. The Veteran was notified of the hearing date in December 2013 and January 2014. In January 2006 and October 2008, the Veteran was provided with VA knee examinations and the reports have been associated with the claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim for increased rating for service-connected right knee disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner personally interviewed and examined the Veteran, reviewed VA electronic medical records, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. X-rays were provided and reviewed. Additionally, neither the Veteran, nor his representative, has questioned the adequacy of the examinations. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed left shoulder disability. However, the Board finds that a VA examination is not necessary in order to decide the matter. In this case, because the weight of the credible evidence demonstrates that the Veteran did not in fact sustain a left shoulder disability in service, or otherwise show chronic symptoms of the left shoulder during service or since service separation, there is no duty to provide a VA medical examination. See Duenas v. Principi, 18 Vet. App. 512 (2004); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of the claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and to assist the Veteran. Right Knee Disability Laws and Regulations: Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where, as here, entitlement to compensation already has been established for a right knee disability and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2013). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of the earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14 (2013). In Esteban, the Court held that the critical element was that the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. The Veteran is in receipt of a 10 percent rating from January 25, 1997 to October 14, 2008, and a 20 percent rating from October 15, 2008, for a right knee disability properly rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). VA's General Counsel has held that a veteran who has arthritis and instability in his knees may receive separate ratings under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997). The VA General Counsel subsequently held that separate ratings are only warranted in these types of cases when a veteran has limitation of motion in his knees to at least meet the criteria for a zero-percent rating under Diagnostic Codes 5260 or 5261, or (consistent with DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and 38 C.F.R. §§ 4.45 and 4.59) where there is probative evidence showing the veteran experiences painful motion attributable to his arthritis. See VAOPGCPREC 9-98 (1998). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206. Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Prior to October 15, 2008: From January 25, 1997 to October 14, 2008, the Veteran was in receipt of a 10 percent rating for a right knee disability. The Veteran contends that his disabilities have increased in severity and are "only going to get worse." In a February 2007 notice of disagreement the Veteran reported that it is increasingly difficult for him to complete his daily routine, and that he was placed on permanent light duty at work because he cannot climb ladders. The Veteran contends that exposure to ionizing radiation during active service played a great part in the deterioration of his knees. After review of the evidence, lay and medical, the Board finds that prior to October 15, 2008, right knee disability manifested as abnormal gait; decreased movement when ambulating; instability; pain; swelling on the right side; mild crepitus; flexion limited to 70 degrees with additional limitation due to pain and weakness; Drawer test and McMurray's test within normal limits; and X-ray findings within normal limits. In a January 2006 VA examination the Veteran reported that intermittently he gets unbearable pain on the inside of his right knee that results in tingling in his toes, causing a serious limp when walking and an inability to stand or perform daily activities. He reported having had incapacitating episodes over approximately 100 days in the past year. The Veteran required a brace for ambulation because of instability and pain. Upon physical examination, the January 2006 VA examiner found the Veteran's gait was abnormal with decreased movement in the right knee when ambulating. The right knee joint's appearance was abnormal on the right side with swelling and within normal limits on the left side. Further examination revealed mild popping/crepitus and flexion limited to 70 degrees. Extension to 0 degrees. The VA examiner noted that right knee joint function was additionally limited by pain and weakness after repetitive use testing (weakness had the major functional impact), but recorded flexion to 70 degrees with pain, noting the VA examiner was unable to determine additional limitation in degrees. See DeLuca, 8 Vet. App. at 204-7. January 2006 X-rays demonstrated normal bone mineral density and alignment; no evidence of fracture or periosteal reaction, joint effusion or erosion. The Drawer test and McMurray's test of the right knee were within normal limits. Based on the evidence of record, the Board finds that prior to October 15, 2008, an evaluation in excess of 10 percent for the Veteran's right knee disability is not warranted. As mentioned above, the Veteran wore a brace on his right knee for instability and pain; and repetitive use testing revealed additional limitations due primarily to weakness. Therefore, the Board finds that prior to October 15, 2008, the disability picture of the Veteran's right knee DJD with ACL deficiency more nearly approximated the criteria required for a 10 percent rating for slight knee impairment of recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Prior to October 15, 2008, the Veteran did not report his knee gave way and ACL tests were within normal limits. Normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. In the January 2006 VA examination, the Veteran had full right knee extension. Even considering pain, flexion was, at worst, limited to 70 degrees. Accordingly, the Board finds that a higher rating in excess of 10 percent also is not warranted under Diagnostic Codes 5260, 5261. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his right knee disability does not equate to more than the disability picture contemplated by the 10 percent rating already assigned. 38 C.F.R. § 4.71a. In addition, as the right knee is not compensable at the 0 (zero) rating for extension or flexion, separate ratings are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5160, 5261; see also VAOPGCPREC 9-98 (1998). From October 15, 2008: The Veteran is in receipt of a 20 percent rating for residuals, status post internal derangement of the right knee (right knee disability), effective October 15, 2008 under Diagnostic Code 5257. After review of all the evidence, lay and medical, the Board further finds that from October 15, 2008, right knee disability manifested as giving way and weakness; swelling; tenderness; guarding of movement; moderate subluxation; flexion limited to 100 degrees with additional limitation after repetitive use due to pain, fatigue, weakness, lack of endurance; X-ray findings within normal limits; and pivot shift sign elicited and anterior drawer sign positive. In an October 2008 VA examination the Veteran reported right knee symptoms of weakness, stiffness, swelling, heat, redness, giving way and locking. He stated that he does not have lack of endurance, fatigability and dislocation. He reported bilateral knee pain which occurred 4 times per week and each time lasted for 3-5 days. The Veteran described the pain as burning, aching, sharp, cramping, and swelling, and noted it can be elicited by physical activity: standing, walking, and sitting. His right knee also gives way and gets weak when he walks long distances or stands/sits for extended time periods. The Veteran has difficulty walking up and down stairs. Physical examination of the right knee, in October 2008, revealed crepitus and giving way. There was no genu recurvatum and locking pain. Right knee anterior and posterior cruciate ligaments stability test was abnormal with moderate instability. Right knee medial and lateral collateral ligaments stability test was within normal limits. Flexion was limited to 100 degrees. Extension to 0 degrees. The right knee was additionally limited by the following after repetitive use: pain, fatigue, weakness, and lack of endurance; however, the VA examiner noted there was no additional limitation in degree and that lack of endurance had the major functional impact. X-ray findings were within normal limits. Based on the evidence of record, the Board finds that from October 15, 2008, an evaluation in excess of 20 percent for the Veteran's right knee disability is not warranted. As mentioned above, in October 2008 the Veteran reported his knee giving way; right knee anterior and posterior cruciate ligaments stability test were abnormal; and the Veteran was found to have moderate instability. Therefore, the Board finds that since October 15, 2008, the disability picture of the Veteran's right knee disability more nearly approximated the criteria required for a 20 percent rating for moderate knee impairment of recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In the October 2008 VA examination, the Veteran had full right knee extension. Even considering pain, flexion was, at worst, limited to 100 degrees. Accordingly, the Board finds that a higher rating in excess of 20 percent also is not warranted under Diagnostic Codes 5260, 5261. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his right knee disability does not equate to more than the disability picture contemplated by the 20 percent rating already assigned. 38 C.F.R. § 4.71a. For the next higher rating, the Veteran needs to demonstrate right knee severe recurrent subluxation or lateral instability; flexion limited to 15 degrees; or extension limited to 20 degrees. 38 C.F.R. § 4.71a. The Board has also considered other Diagnostic Codes relating to the knees; however, the Board finds that they are not applicable. For example, upon review of the claims file, the record does not demonstrate evidence of ankylosis of the knee (Diagnostic Code 5256); dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion (Diagnostic Code 5258); malunion of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). As such, the Board finds that higher ratings for the right knee are not warranted under any of these Diagnostic Codes for any rating period. For these reasons, the Board finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for right knee disability prior to October 15, 2008; and against a grant of a rating in excess of 20 percent for right knee disability from October 15, 2008. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the Veteran's service-connected right knee disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected right knee disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The musculoskeletal schedular rating criteria, Diagnostic Codes 5256 through 5263, specifically provide for disability ratings of the knee and leg based on ankylosis, subluxation or lateral instability, cartilage dislocation or removal, limitation of flexion, limitation of extension, nonunion or malunion of the tibia and fibula, and genu recurvatum. In this case, considering the lay and medical evidence, the Veteran's service-connected right knee disability is characterized by at worst by moderate instability, flexion limited to 70 degrees with pain, swelling, weakness, lack of endurance, and fatigue. These symptoms are part of the schedular rating criteria for knees and leg, Diagnostic Codes 5256 through 5263 (which also incorporate various orthopedic factors that limit motion or function of the lumbar spine, such as pain). See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. In comparing the Veteran's disability level and symptomatology of the right knee to the rating schedule, the degree of disability of the right knee throughout the entire rating period under consideration is contemplated by the rating schedule and the assigned ratings, are therefore, adequate. In the absence of exceptional factors associated with the service-connected right knee disability the Board finds that the criteria for submission for assignment for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection for Left Shoulder Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In September 2005 the Veteran filed a claim for an increase in compensation for left shoulder; however, he is not service connected for a left shoulder disability. The Veteran contends that his left shoulder disability is related to a January 1994 motor vehicle accident (MVA). Service treatment records do not show complaints, treatment, or diagnosis for the left shoulder. January 1994 service treatment records note back and neck pain following the MVA; cervical spine X-rays were within normal limits; and the Veteran was diagnosed with a soft tissue injury. Treatment records since service separation also provide no record of complaints, treatment, or diagnosis of the left shoulder. While the Veteran is competent to report that he injured his left shoulder in a MVA in January 1994, the Board finds that his statement is not credible. The Veteran sought treatment in January 1994 following the MVA regarding his neck and back, and service treatment records note multiple follow up visits for his back related to the MVA. For treatment purposes following an MVA, the Veteran would be expected to give a full and accurate account of his symptoms. The Board finds it unlikely that the Veteran would report neck and back pain, but not report left shoulder symptoms, had the symptoms been present, when the treatment notes of record are otherwise complete. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Therefore, the Board finds that the weight of the credible evidence is against service connection for a left shoulder disability, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Reopening of Service Connection Legal Criteria: The Veteran seeks to reopen a previously denied claim of service connection for lumbosacral spine and left knee disabilities. The claims for service connection for lumbosacral spine and left knee disabilities were last denied in a November 1997 rating decision, and the Veteran did not initiate an appeal of the decision. The current claims are grounded upon the same factual bases as the claims previously denied in the November 1997 rating decision. Thus, as a general matter, it is appropriate for the Board to consider the Veteran's claims as requests to reopen the claims previously denied in November 1997. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of reopening service connection based on new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a finally disallowed claim unless new and material evidence is received. Before the Board may reopen such a claim, it must find evidence received is both new and material. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "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. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 315 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if the nature of a statement or other assertion is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis: In the claims on appeal, the Veteran seeks to reopen service connection for lumbosacral spine and left knee disabilities. In a November 1997 rating decision, service connection for lumbosacral spine (claimed as low back pain) and left knee disabilities were denied because there was no evidence of a residual or chronic disability in service or within one year of discharge from service. The Veteran did not appeal this determination, and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.201, 20.302(a), 20.1103. Lumbosacral Spine Disability After reviewing the record, the Board finds the evidence received since the November 1997 rating decision relates to a previously unestablished fact of a chronic disability in service necessary to substantiate the service connection claim for a lumbosacral spine disability. Since the prior denial of the claim in November 1997, recent evidentiary submissions have included VA treatment records and lay statements by the Veteran. The Veteran's February 2007 lay statement, as well as the May 2004 VA treatment records, are new, in that they were not of record at the time of the prior final denial, and are not cumulative and redundant of evidence already of record. The Veteran's lay statement and May 2004 VA treatment record are material, as they demonstrate continuous back treatment and indicate evidence of arthritis, which may relate to the unestablished fact of a chronic disability that is necessary to substantiate the claim. 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Given the low threshold standard, the Board finds that the additional evidence received, the Veteran's lay statement and May 2004 VA treatment records, are new and material within the meaning of 38 C.F.R. § 3.156, warranting a reopening of service connection for a lumbosacral spine disability. Shade, 24 Vet. App. at 117-18. Left Knee DJD After reviewing the record, the Board also finds the evidence received since the November 1997 rating decision relates to a previously unestablished fact of nexus, relationship between service and a current disability, necessary to substantiate the service connection claim for left knee DJD. Since the prior denial of the claim in November 1997, recent evidentiary submissions have included VA knee examinations, VA treatment records, private personnel records, and lay statements by the Veteran. The Veteran's statement during the January 2006 VA examination that his left knee disability was secondary to his service connected right knee, as well as the VA examination reports of January 2006 and October 2008, and the private personnel records, are new, in that they were not of record at the time of the prior final denial, and are not cumulative and redundant of evidence already of record. The Veteran's lay statement and VA examination results are material, as the statement claims the left knee disability is secondary to the service-connected right knee, which may relate to the unestablished fact of a nexus, the relationship of a current disability (noted in the VA examination reports) to service, that is necessary to substantiate the claim. Given the low threshold standard, the Board finds that the additional evidence received, the Veteran's lay statement and VA examination reports, are new and material within the meaning of 38 C.F.R. § 3.156, warranting a reopening of service connection for a left knee disability. Shade at 117-18. ORDER 1. An increased rating, in excess of 10 percent, prior to October 15, 2008, for right knee DJD with ACL deficiency is denied. 2. An increased rating, in excess of 20 percent, from October 15, 2008, for right knee DJD with ACL deficiency is denied. 3. Service connection for a left shoulder disability is denied. 4. As new and material evidence has been received; service connection for lumbosacral disability is reopened. 5. As new and material evidence has been received; service connection for left knee DJD is reopened. REMAND Service Connection for Lumbosacral Spine and Left Knee DJD After review of the record, the Board finds that additional development is needed on the issues of service connection for lumbosacral spine and left knee disabilities. A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d) (2013). Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran which takes into account the records of prior examinations and treatment as well as to provide a medical examination or, to obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.326 (2013); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran contends that his left knee disability is secondary to his service-connected right knee disability. An October 2008 VA examination report notes the Veteran was diagnosed with left knee DJD. Evidence of record does not contain information regarding the etiology of the Veteran's left knee DJD. Service treatment records show chronic lumbosacral spine symptoms during active service. May 2004 VA treatment records note tenderness, positive straight leg raise test at 50 degrees bilaterally, and back pain/injury related to unconfirmed arthritis. The Board finds that a remand is warranted to obtain updated VA treatment records; a VA examination and opinion as to the nature and etiology of the lumbosacral spine disability; and a VA examination and medical opinion as to the etiology of the left knee DJD. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. 1. Obtain any pertinent, outstanding VA treatment records from May 2004 regarding lumbosacral spine disability and/or left knee disability, and associate them with the record. 2. Thereafter, schedule the Veteran for a VA back examination to assist in determining the nature and etiology of the Veteran's lumbosacral spine disability. The VA examiner should provide opinions based on the available evidence of record: a. Is it at least as likely as not that the Veteran's lumbosacral spine disability incurred in or was caused by active service? b. Is it at least as likely as not that the Veteran's lumbosacral spine disability is caused by the Veteran's service-connected right knee disability? c. Is it at least as likely as not that the Veteran's lumbosacral spine disability permanently worsened in severity beyond a normal progression by the service-connected right knee disability? 3. Schedule the Veteran for VA knee examination to assist in determining if the Veteran's left knee disability is etiologically related to service. The VA examiner should provide opinions as to whether, based on the available evidence of record: a. Is it at least as likely as not that the Veteran's left knee DJD incurred in or was caused by active service? b. Is it at least as likely as not that the Veteran's left knee DJD is caused by the Veteran's service-connected right knee disability? c. Is it at least as likely as not that the Veteran's left knee DJD permanently worsened in severity beyond a normal progression by the service-connected right knee disability? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. 4. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran with a supplemental statement of the case, and should give the Veteran and representative a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs