Citation Nr: 1751316 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-36 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a left knee disorder. 2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disease or injury. 3. Entitlement to a disability rating in excess of 10 percent for a chronic lumbar back strain, with mild disc narrowing. 4. Entitlement to a temporary total evaluation beyond September 2014 because of treatment for a service-connected right ankle disability requiring convalescence. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011, September 2012, and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in March 2017. A transcript of the hearing is associated with the claim file. The Veteran's claim for an extension of his temporary total evaluation following a period of convalescence originally stemmed from an April 2009 surgery for his service-connected right ankle disability. Since that time, the Veteran has had several right ankle surgeries and corresponding periods of temporary total evaluations. The VLJ clarified that issue on appeal during the hearing, as reflected on the title page. These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issue of entitlement to a disability rating in excess of 10 percent for a chronic lumbar back strain, with mild disc narrowing addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 1973 rating decision denied service connection for a left knee disorder on the basis that there was no present disability. 2. Additional evidence received since the May 1973 rating action on the issue of service connection for a left knee disorder is relevant and probative. 3. Service connection is in effect for status post right total ankle replacement with inbone/residuals, ligamentous injuries, post-operative, right ankle, now with degenerative joint disease. 4. Traumatic left knee degenerative joint disease relates to his service-connected right ankle disability. 5. The Veteran received a temporary total evaluation beyond September 2014 because of treatment for a service-connected right ankle disability requiring convalescence; therefore the current claim is rendered moot. CONCLUSIONS OF LAW 1. The May 1973 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 2. New and material evidence has been received to reopen the claim for service connection for a left knee disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. Traumatic left knee degenerative joint disease is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2016). 4. There is no question of law or fact remaining involving the claim of entitlement to a temporary total evaluation beyond September 2014, and the appeal is moot. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 3.3 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. New and Material Evidence When a claim is disallowed and becomes final, the claim will not be reopened except as provided by applicable regulation. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means more than evidence that has not previously been included in the claims folder. The evidence, even if new, must be material, in that it is evidence not previously of record that relates to an unestablished fact necessary to establish the claim, and which by itself or in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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." See id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran was initially denied service connection for a left knee disorder in a May 1973 rating decision. The Veteran was notified of the decision via a letter dated in June 1973. The Veteran did not sumit additional evidence or appeal, and the claim is final. The evidence of record at the time of the May 1973 rating decision included the Veteran's service treatment records and a May 1973 VA examination. In support of the current application to reopen service connection for a left knee disorder, the new evidence associated with the record since the May 1973 rating decision includes, in pertinent part, a June 2015 private medical opinion diagnosing the Veteran with a current left knee disability, and a July 2017 private medical opinion which indicates that the Veteran's service-connected right ankle disability may have contributed to the deterioration of the Veteran's left knee. The Board finds that the June 2015 and July 2017 medical reports relate to an unestablished fact necessary to substantiate the claim for service connection for a left knee disorder. In other words, they provide evidence in support of a finding that the Veteran's left knee disorder may be caused or aggravated by the service-connected right ankle disability. Accordingly, the evidence is new and material, and the claim is reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). III. Service Connection Service connection is warranted for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). The Veteran is seeking service connection for a left knee disability, which he believes is associated with his service-connected right ankle disability. The Veteran is presently diagnosed with left knee degenerative joint disease. See June 2015 private medical record. January 2011 VA treatment records reflect that the Veteran sought an orthopedic consult for his left knee. The treating physician reported that the Veteran's left knee experienced flare ups due to the extra load it was carrying due to the Veteran's service-connected right ankle problems. The Veteran was afforded a VA examination in April 2013. He reported that he shifted his weight onto the left side of his body to compensate for his service-connected right ankle disability. After separation, he stated that he worked as a fork truck operator, an auto repairman, and a postal service dock worker. After performing an examination and reviewing the medical history, the examiner concluded that the Veteran's left knee disability was less likely than not incurred in or caused by service. She attributed the Veteran's left knee disability to age, wear and tear with time and physically strenuous occupations. The examiner did not provide an opinion as to whether the Veteran's service-connected right ankle disability caused or aggravated the Veteran's left knee disability. During the Veteran's March 2017 Board hearing, he testified that he notified left knee pain after he injured his right ankle, and a change in his gait. In July 2017, the VA received a statement from the Veteran's treating physician at a VA orthopedic clinic. She reported that the Veteran was an active patient, and that she thought there was a relationship between the development of osteoarthritis in the Veteran's left knee and his service-connected right ankle disability. She reasoned that the Veteran keeps weight off of his right ankle, and applies that weight to his left knee, causing it to become painful. The Board finds the July 2017 medical opinion provided by the Veteran's treating physician to be of the greatest probative value. She is familiar with the Veteran's orthopedic disorders and provided adequate reasons and explanation when determining that there was a likely relationship between the Veteran's service-connected right ankle disability and his left knee disability. The April 2013 VA examination report failed to provide an opinion regarding secondary service connection. The preponderance of the evidence favors granting the Veteran's claim of entitlement to service connection for left knee degenerative joint disease due to repetitive trauma and gait. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). IV. Temporary Total Evaluation The Board finds that the Veteran's claim for entitlement to a temporary total evaluation beyond September 2014 due to treatment for a service-connected right ankle disability requiring convalescence is moot, as he is already in receipt of this benefit. The Veteran filed for a temporary total evaluation in August 2010 following surgery for a service-connected right ankle disability. Since that time, the RO awarded temporary total evaluations following right ankle procedures from September 2009 to August 2010, from August 2011 to May 2012, and from July 2013 to September 2014. In January 2016, the VA received treatment records documenting a December 11, 2014 surgical procedure on the Veteran's service-connected right ankle requiring convalescence. During his March 2017 Board hearing, the undersigned VLJ clarified this issue. The Veteran testified that the only period at issue followed the end of his September 2014 temporary total evaluation. The Veteran stated that since his September 1, 2014 temporary total evaluation ended, he had surgery on his right ankle. His VA treatment records reflect that this surgery occurred on December 11, 2014. Following the Board hearing, the RO awarded a temporary total evaluation, effective December 11, 2014 to January 31, 2015, based on a right ankle surgery which necessitated convalescence. See March 2017 Rating Decision. In this case, the Veteran has been awarded the benefit sought, a temporary total evaluation following a December 2014 right ankle surgery. Therefore, there is no actual or potential benefit that could arise by awarding a temporary total evaluation following the December 2014 right ankle surgery and the claim for a temporary total evaluation is moot. See Mintz v. Brown, 6 Vet. App. 277 (1994) (the Board does not have jurisdiction to review a case if no additional benefit would accrue to the claimant). In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by the Veteran ORDER The application to reopen a claim for entitlement to service connection for left knee disorder is granted. Entitlement to service connection for a traumatic arthritis of the left knee is granted. The appeal for entitlement to a temporary total evaluation beyond September 2014 because of treatment for a service-connected right ankle disability requiring convalescence has been rendered moot and is dismissed. REMAND The Veteran seeks a rating in excess of 10 percent for his service-connected chronic lumbar back strain, with mild disc narrowing. The Veteran was afforded a VA examination for his lumbar strain disability in July 2013. The United States Court of Appeals for Veterans Claims has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of "38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The prior VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. Additionally, the Veteran was unable to perform some of the motion testing during the July 2013 VA examination because he had recently undergone a surgical procedure, and was restricted from performing certain movements. During the March 2017 Board hearing, the Veteran's representative requested an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the severity of his chronic lumbar back strain, with mild disc narrowing. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. 2. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs