Citation Nr: 1802323 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-19 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for arthritis, left knee. 2. Entitlement to service connection for arthritis or other disorder of the left knee. 3. Entitlement to service connection for arthritis of or other disorder the right hand. 4. Entitlement to service connection for or other disorder of the left hand. 5. Entitlement to service connection for arthritis or other disorder of the right hip. 6. Entitlement to service connection for arthritis or other disorder of the left hip. 7. Entitlement to service connection for arthritis or other disorder of the right shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty from March 1963 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a DRO hearing. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2016). The issues of service connection for arthritis of the left knee, hips, right shoulder, and hands are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A September 1984 rating decision denied service connection for left knee arthritis; the Veteran did not appeal this decision and no new evidence was received within one year of the decision. 2. Since the last final denial in September 1984, new and material evidence related to the issue of left knee arthritis has been received. CONCLUSIONS OF LAW 1. The September 1984 denial of service connection for left knee arthritis became final. 38 U.S.C.A. § 7105 (West 2016); 38 C.F.R. § 3.104 (2017). 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C.A. § 5108 (West 2016); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The RO initially denied service connection for left knee arthritis in a September 1984 rating decision. The RO's decision was based in part on a finding that left knee arthritis was not shown by the evidence of record. Specifically, the RO found that the left knee showed no bone changes except for calcification at the area of attachment of the tendon of the quadriceps. The Veteran did not appeal this decision, and VA did not receive new evidence within a year of it. As such, the September 1984 rating decision became final. Since the last final denial, in September 1984, VA has received new and material evidence regarding the claimed left knee disability. Significantly, a February 2015 VA examination revealed a current diagnosis of left knee strain, chondromalacia, and degenerative patellar spur. This new evidence relates to an unestablished element of the previously denied claim (i.e., a current disability) and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a). ORDER New and material evidence having been received, the petition to reopen the claim of service connection for left knee arthritis is granted. REMAND The Veteran seeks service connection for arthritis of the left knee, bilateral hips, right shoulder, and bilateral hands. See 11/14/2014, Fully Developed Claim. He believes that these disabilities are related to his service-connected right knee. Id. In detail, he asserts that his right knee chondromalacia has progressed to his hips, left knee, right shoulder, and hands. See 04/13/2015, Notice of Disagreement; 07/20/2015, Hearing Testimony, at 4. The Veteran has come to this understanding based on conversations with both his and his wife's doctors. (The Veteran has stated that his wife has rheumatoid arthritis.) See 07/20/2015, Hearing Testimony, at 4-7. He has also referenced information from the Arthritis Foundation, but has not submitted any literature from this or any other source. See 04/22/2016, substantive appeal. With regard to the claimed left knee arthritis, a February 2015 VA examination shows a diagnosis of left knee strain, chondromalacia, and degenerative patellar spur. Service treatment records show a diagnosis of bilateral chondromalacia in November 1977 and a history of arthritis in both knees since 1978 (as noted in the Veteran's October 1983 report of medical history for purposes of retirement). This latter finding, however, is at odds with a May 1984 VA examination report, which cites a radiological finding of no bone changes, except for calcification at the area of attachment of the tendon of the quadriceps, and no soft tissue abnormalities for the Veteran's left knee. The February 2015 VA examiner opined that the Veteran's current left knee disability is less likely than not related to his in-service chondromalacia with possible arthritis. In support of this conclusion, the examiner noted that there was no evidence of a chronic left knee disability or continuity of care in the Veteran's medical records. The examiner then went on to summarize the relevant evidence. The February 2015 VA opinion is inadequate for two reasons. First, the opinion relies heavily on the absence of documented treatment and symptoms to rule out a nexus. Further, the examiner did not provide a clear medical rationale for his conclusion that the current left knee disability is not related to symptoms shown in service. Second, the examiner did not address the aspect of secondary service connection, that is, whether the claimed left knee disability has been caused or aggravated by the Veteran's service-connected right knee disability. For these reasons, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran, through his representative, asserts that a VA examination should be afforded with regard to the other claimed disabilities. See 12/08/2017, Appellate Brief. As already stated, he asserts that his arthritis of the hands, hips, and right shoulder is also secondary to his service-connected right knee arthritis. VA treatment records indicate a history of osteoarthritis. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. Here, the Board finds that a VA examination is warranted for the claimed hands, hips, and right shoulder disabilities, as the Veteran has put forward a plausible theory of entitlement, namely, that the arthritis in these joints is a progression of the service-connected right knee arthritis. The Board also acknowledges that the Veteran has taken issue with the fact that the February 2015 VA examination was conducted by a physician identified as a family practitioner. See 12/08/2017, Appellate Brief. The Board has already found that the February 2015 VA opinion is inadequate and does not need to address the qualifications of the aforementioned VA examiner. Nonetheless, the Board finds that, to the extent possible, any new VA examination should be conducted by a specialist with the appropriate expertise. Finally, the Board notes that VA treatment records were last associated with the claims file in September 2016. Any VA records since that date should be obtained. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed disabilities. To the extent possible, the examiner should be a specialist with the appropriate expertise. Review of the claims file should be noted in the examiner's report. The examiner should provide a diagnosis for any current left knee, hips, hands, and right shoulder disabilities. For any current disability, the examiner should respond to the following: Is the current disability at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? With regard to the claimed left knee disability, the examiner must address whether any current left knee disability is related to documented left knee symptoms in service. Any conclusion should be supported by a clear medical rationale; the examiner should not rely solely on the absence of evidence. If not directly related to service, is the current disability at least as likely as not proximately due to one or more of his service-connected disabilities? If not, then is it at least as likely as not that the current disability has been aggravated (worsened beyond it natural progression) by one or more of his service-connected disabilities? The examiner must consider and address the Veteran's contention that his claimed arthritis in multiple joints is a progression of his service-connected right knee arthritis. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 3. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs