Citation Nr: 1625756	
Decision Date: 06/28/16    Archive Date: 07/11/16

DOCKET NO.  10-27 129	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee.

2.  Entitlement to an increased rating for a right knee disability, currently rated as 30 percent disabling.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel
INTRODUCTION

The Veteran served on active duty in the Navy in September 1980 and in the Army from January 1981 to January 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied entitlement to service connection for a left knee disability and an increased rating for the Veteran's service-connected right knee disability.

The Veteran appeared at Board hearing before the undersigned in April 2016.  

The Board notes the issue of service connection for a left knee disability, claimed as degenerative joint disease secondary to the Veteran's service-connected right knee disability, was certified to the Board as an original claim without the need of new and material evidence to reopen the claim; however, as explained in more detail below, the Board finds service connection for a left knee disability secondary to the right knee was denied by a final March 2002 rating decision.  See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (holding that the Board must address whether a newly submitted claim is truly representative of a new claim, or if it should be construed as an application to reopen a previously denied claim).

The Board acknowledges the Veteran previously claimed entitlement to service connection for a left knee medial meniscal cyst secondary to his service-connected right knee disability.  Yet, the Board finds the new claim is not based upon a diagnosed disease or injury that is distinct from a claim previously considered.  See Velez, 23 Vet. App. 204; see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) ("A claim based upon a distinctly diagnosed disease or injury has a different factual basis, and as such, cannot be considered the same as a previously decided claim that was based upon another diagnosis or injury").  While the record now includes the diagnosis of left knee arthritis, the underlying factual basis, proximate causation or aggravation of a left knee disability by the right knee, is the same as the previous claim.  Rather, the diagnosis of arthritis constitutes a previously unproven element of the prior secondary service connection claim and warrants reopening of the claim.  This procedural posture is more favorable to the Veteran as it could, in theory, result in an earlier effective date of service connection under VA regulation if the claim is granted.  See 38 C.F.R. § 3.156(c) (2015).

Additionally, TDIU is an element of the Veteran's increased rating claim because unemployability has been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, the issue is included in the present appeal, as reflected on the title page of this decision, even though TDIU was denied in an unappealed February 2015 rating decision.

The issues of service connection for a left knee disability, an increased rating for a right knee disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Evidence received by VA since a final March 2002 rating decision that denied secondary service connection for a left knee disability relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).




REASONS AND BASES FOR FINDING AND CONCLUSION

As noted in the introduction, a March 2002 rating decision denied secondary service connection for a left knee disability.  The Veteran did not file a notice of disagreement, and new and material evidence regarding the claim was not received within one year of notice of the decision.  Thus, the March 2002 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.302(a).

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  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.  Id.

The Court of Appeals for Veterans Claims (Court) has held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim."  Id. at 120.  The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a "low threshold" for finding new and material evidence that is favorable to the claimant.  Id.

A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

Here, the March 2002 rating decision denied secondary service connection for the left knee indicating there was no evidence the Veteran's service-connected right knee aggravated his left knee condition beyond its normal progression.  At that time, the left knee condition was diagnosed as a medial meniscal cyst.  Since that time, the Veteran has undergone several right knee surgeries, to include total right knee replacement.  He has reported these surgeries have caused him to favor his left leg, leading to increased disability in his left knee.  He has been diagnosed as having left knee degenerative joint disease since the March 2002 rating decision.  This evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim.  Thus, reopening of the claim is warranted.


ORDER

The claim of entitlement to service connection for a left knee disability is reopened.


REMAND

VA has a duty to ensure any medical examination or opinion it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).  "An opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one."  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal citations and quotations omitted).

Here, the Board finds the February 2014 VA opinion regarding service connection for a left knee disability is inadequate to make an informed decision on the Veteran's claim.  First, the opinion does not address direct service connection even though there is evidence of left knee symptomatology noted in service.  More specifically, the Veteran sought treatment for left knee pain after falling from a truck in April 1981.  The Veteran was also treated for a possible left knee strain in May 1983.  Although the Veteran's claim is based upon secondary service connection, the Board is required to consider all theories of entitlement reasonably raised by the record.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence).  Second, the February 2014 VA opinion does not address aggravation with respect to secondary service connection.  An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition.  See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013).

Further, during the April 2016 hearing, the Veteran testified his service-connected right knee disability has increased in severity since his last VA examination in February 2014.  The record establishes the Veteran has undergone total right knee replacement since his last VA examination.  Thus, a new examination is necessary to assess the current severity of his service-connected right knee disability.  See Snuffer v Gober, 10 Vet. App. 400, 403 (1997) (holding the duty to assist required VA to provide an examination based on claimant's assertion of increased symptomatology since his examination two years prior to the Board's decision).  The Veteran has also reported favoring his left leg as a result of his total right knee replacement, which adds support to his secondary service connection claim for a left knee disability.

The Veteran also testified he has filed a new application for benefits with the Social Security Administration (SSA) since VA previously requested his SSA records.  When there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant.  Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992).

The issue of entitlement to TDIU is inextricably intertwined with the service connection and increased rating claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).

Accordingly, the case is REMANDED for the following action:

1.  Request from the Social Security Administration (SSA) any records relating to any application filed by the Veteran for disability benefits.

2.  Obtain all outstanding VA treatment records and associate them with the Veteran's claims file.

3.  Verify the Veteran's current mailing address in accordance with 38 C.F.R. § 1.710 and ensure all future correspondence are mailed to the verified address.

4.  Schedule the Veteran for a new VA joint examination to determine the current severity of his service-connected right knee disability.  All indicated tests and studies must be performed.  The claims file must be reviewed by the examiner in conjunction with the examination.

The examiner is also asked to address whether the Veteran's current left knee disability is at least as likely as not (a degree of probability of 50 percent or higher) the result of disease or injury in service; or proximately due to, or aggravated by, his service-connected right knee disability.  With respect to aggravation, the examiner is asked to specifically address the February 2002 VA treatment note regarding the Veteran's left knee that indicates it may have been exacerbated by his previous injuries to the right knee.  If aggravation is found, the examiner must attempt to establish a baseline level of severity of the left knee disability prior to aggravation by the right knee disability.

The examination report must include a complete rationale for any opinion provided.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should so state and explain why an opinion cannot be provided without resorting to speculation.

5.  Adjudicate the issue of entitlement to a TDIU that has been raised by the record under the holding in Rice, to include on an extra-schedular basis if necessary.

6.  Readjudicate the other issues on appeal.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran 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 2014).




______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs