Citation Nr: 1803573 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-02 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a bilateral knee disorder. 2. Entitlement to service connection for a right knee disorder, to include as secondary to the service-connected right and left ankle sprain residuals. 3. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right and left ankle sprain residuals. 4. Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right and left ankle sprain residuals. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from December 1977 to December 1981. This appeal comes to the Board of Veterans' Appeals (Board) from January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, denied service connection for lower back pain and continued to deny service connection for a bilateral knee disorder. The current agency of original jurisdiction (AOJ) is the VA RO in Indianapolis, Indiana. A claim for service connection for a lumbar spine disorder (claimed as "lower back pain") and to reopen service connection for a bilateral knee disorder (claimed as "bilateral knee pain") was received in August 2010. Service connection for a bilateral knee disorder was previously denied by the RO in April 2004 and the Veteran did not perfect an appeal of the decision or submit any new and material evidence within the applicable one-year period. See 38 C.F.R. § 3.156(b) (2017); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017); Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Regardless of any RO determination as to the matter of new and material evidence, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Barnett, supra. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the local RO in Indianapolis, Indiana (Travel Board hearing). A transcript of the hearing is of record. The issues of service connection for lumbar spine, right knee, and left knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. An unappealed April 2004 rating decision denied service connection for a bilateral knee disorder on the basis that there was no injury to the knees or a chronic knee condition during service, and no evidence to associate the diagnosed patellofemoral syndrome with active service. 2. The evidence received since the April 2004 rating decision relates to an unestablished fact of a causal relationship between the claimed bilateral knee disorders and the service-connected right and left ankle sprain residuals. CONCLUSIONS OF LAW 1. The April 2004 rating decision to deny service connection for a bilateral knee disorder became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for a bilateral knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). The Board is reopening service connection for a bilateral knee disorder, and is remanding the issues of service connection for lumbar spine, right knee, and left knee disorders; therefore, no discussion of VA's duty to notify and to assist is necessary. Reopening Service Connection for a Bilateral Knee Disorder The Veteran seeks to reopen service connection for a bilateral knee disorder. The original claim for service connection, initially filed in November 2003, was originally denied in an April 2004 rating decision. The Veteran did not perfect an appeal of the decision or submit any new and material evidence within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings, 509 F.3d at 1368. As such, the decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Barnett, 83 F.3d at 1383; Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). In the April 2004 rating decision, the RO denied service connection for a bilateral knee disorder on the basis that there was no injury to the knees or a chronic knee condition during service, and no evidence to associate the diagnosed patellofemoral syndrome with active service. The pertinent evidence of record at the time of the April 2004 rating decision includes service treatment records, VA treatment records, private treatment records, a February 2004 VA examination reports, and lay statements. The Board has reviewed the evidence of record since the April 2004 rating decision and finds that it qualifies as new and material evidence to warrant reopening service connection for a bilateral knee disorder. In a January 2011 written statement, the Veteran contended that the bilateral knee pain is a result of the bilateral ankle disorders. In a November 2011 written statement, the Veteran contended that the pain in his knees has increased with use of braces to treat the ankle disabilities. An October 2014 VA treatment record notes that the Veteran reported that use of ankle braces has caused him so much knee pain that he is unable to wear them regularly. The Board finds that this evidence, received after the April 2004 rating decision, is new. It was not previously of record, and is neither cumulative nor redundant of evidence previously considered by the RO. Such evidence is also material in that it relates to evidence of a causal relationship between the claimed bilateral knee disorders and the service-connected bilateral ankle disabilities (a necessary element for secondary service connection). 38 C.F.R. § 3.310 (2017). When making determinations as to whether new and material evidence has been received, the credibility of the evidence is generally presumed. See Justus, 3 Vet. App. at 513; Duran, 7 Vet. App. 216. This new evidence raises a reasonable possibility of substantiating the claim, so the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. The Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are not applicable. There was no relevant evidence received during the one-year appeal period for the April 2004 rating decision nor have additional service records been received; therefore, 38 C.F.R. § 3.156(b) and (c) do not apply. ORDER As new and material evidence has been received, the appeal to reopen service connection for a bilateral knee disorder is granted. REMAND Service Connection for Lumbar Spine and Bilateral Knee Disorders First, the Board finds it unclear from the evidence of record what right and left knee disabilities the Veteran has been diagnosed with it (either currently diagnosed or diagnosed during or proximate to the appeal period). The November 2011 VA examination report indicates that the Veteran does not have currently diagnosed right or left knee disabilities, but then appears to note "diagnoses" of bilateral genu varum as well as a left patellar tracking abnormality. Further, while the VA examination report notes that degenerative or traumatic arthritis had not been documented on imaging studies of the knees, a subsequent October 2014 x-ray report revealed minimal degenerative changes in the right knee. See October 2014 VA treatment record. An April 2016 VA treatment record notes that the Veteran reported bilateral knee pain. An assessment of likely right knee patellofemoral arthropathy was rendered. As such, the Board finds that additional VA examination is necessary to clarify the nature of any current knee disabilities. Next, the Veteran contends that he has experienced back pain since using ankle supports to treat the service-connected bilateral ankle disabilities and worsening knee pain associated with use of the ankle braces. The Veteran further contends that the back and knee disorders are caused/aggravated by an altered gait from the service-connected ankle disorder. See November 2011 written statement, February 2017 Board hearing transcript. At the November 2011 VA examination, the VA examiner noted that the Veteran separated from service in 1981 and reported low back pain beginning six to seven years prior - receiving treatment from a chiropractor beginning in 2007. The VA examiner opined that the lumbar spine osteoarthritis is attributable to normal aging and genetics. The VA examiner opined that it is less likely than not that the low back pain was aggravated by the in-service condition (presumably the service-connected ankle disabilities). The November 2011 VA examiner further noted that the Veteran developed bilateral knee pain three to four years prior, x-rays taken at the time of the VA examination were unremarkable, and physical examination revealed findings consistent with a left patellar tracking abnormality unrelated to the ankle sprain. The VA examiner opined that the bilateral knee pain is less likely than not aggravated by the in-service condition (presumably the service-connected ankle disabilities). The November 2011 VA examiner did not provide supporting rationale for the rendered opinions that the bilateral knee and lumbar spine disorders were not aggravated by the service-connected ankle disabilities. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the VA examiner did not opine as to whether any bilateral knee or lumbar spine disabilities were caused or aggravated by the altered gait associated with the service-connected ankle disabilities. Additionally, the Veteran reports experiencing ongoing bilateral knee and lumbar spine symptomatology, including pain, during service and since service separation. See November 2011 written statement, February 2017 Board hearing transcript. The VA examiner did not address these lay contentions. Based on the above, the Board finds that an additional VA opinion is necessary because there remains some question as to etiology of the lumbar spine and bilateral knee disorders. 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the issues of service connection for lumbar spine, right knee, and left knee disorders are REMANDED for the following action: 1. Schedule a VA examination(s) to assist in determining the etiology of the claimed lumbar spine, right knee, and left knee disorders. The VA examiner should review the claims folder. The examiner should diagnose all lumbar spine and knee disabilities and then offer the following opinions with supporting rationale: Is it at least as likely as not (50 percent or greater probability) that each current lumbar spine, right knee, and left knee disorder was incurred in or caused by active service? In answering this question, the VA examiner should note and discuss the Veteran's lay statements that he experienced chronic knee pain during service as well as knee and back pain after falling off the wing of an airplane during service. Is it at least as likely as not (50 percent or greater probability) that each current current lumbar spine, right knee, and left knee disorder was caused by the service-connected bilateral ankle disabilities? Is it at least as likely as not (50 percent or greater probability) that each current current lumbar spine, right knee, and left knee disorder was aggravated (worsened in severity beyond a natural progression) by the service-connected bilateral ankle disabilities? In rendering the requested opinions, the VA examiner should note and discuss the contention that the ankle braces aggravated the bilateral knee disorders and caused low back pain, as well as that the altered gait associated with the bilateral ankle disabilities caused or aggravated any bilateral knee and lumbar spine disorders. 2. Then, readjudicate the issues on appeal. If any part of the appeal remains denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs