Citation Nr: 18139988 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-00 291 DATE: October 2, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, is reopened. New and material evidence having been received, the claim of entitlement to service connection for anxiety and depression is reopened. REMANDED The issue of entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, is remanded. The issue of entitlement to service connection for anxiety and depression, to include as secondary to service-connected left knee disability, is remanded. The issue of entitlement to an increased disability rating for total left knee replacement, currently rated as 30 percent disabling, is remanded. FINDINGS OF FACT 1. A July 2011 rating decision denied entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability; the Veteran did not timely appeal that denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the July 2011 rating decision. 2. Evidence received since the July 2011 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability. 3. A July 2011 rating decision denied entitlement to service connection for anxiety and depression; the Veteran did not timely appeal that denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the July 2011 rating decision. 4. Evidence received since the July 2011 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for anxiety and depression. CONCLUSIONS OF LAW 1. The July 2011 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.200, 20.202, 20.302, 20.1103 (2017). 2. New and material evidence having been received; the claim for entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, is reopened. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303 (2017). 3. New and material evidence having been received; the claim for entitlement to service connection for anxiety and depression is reopened. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to September 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal of June 2014 and April 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that 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. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). Analysis In this case, the RO denied service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, in a July 2011 rating decision because there was no evidence that the Veteran’s low back disability is proximately due to, or chronically aggravated by his service-connected left knee disability. Additionally, the July 2011 rating decision denied service connection for anxiety and depression because there was no evidence that the Veteran’s condition occurred in or was caused by his active military service. Thus, service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, and service connection for anxiety and depression could not be established. The Veteran was notified of the decision in a letter dated July 2011. The Veteran did not file a notice of disagreement with the July 2011 rating decision and no additional evidence pertinent to the issues were physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2011 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105. Evidence associated with the record since the final July 2011 rating decision, relating to his claim for entitlement to service connection for degenerative disc disease of the lumbar spine, includes a medical article discussing the link between limping and back pain. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the medical article raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected left knee disability, and the claim is reopened. 38 C.F.R. § 3.156 (a). Evidence associated with the record since the final July 2011 rating decision, relating to his claim for entitlement to service connection for anxiety and depression, includes lay statements reflecting that the Veteran’s anxiety and depression is secondary to his service-connected left knee disability. This evidence is new in that it was not previously considered by VA. It is also material because it offers additional insight into the nature of the claimed disabilities and because it presents a new theory of entitlement to service connection not previously considered by VA. See Shade, 24 Vet. App. at 118. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for anxiety and depression, and the claim is therefore reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the remaining issues on appeal. 1. Entitlement to Service Connection for Degenerative Disc Disease of the Lumbar Spine, to Include as Secondary to Service Connected Left Knee Disability The Veteran seeks entitlement to service connection for a low back disability. The Veteran was provided a VA examination as to his low back disability in February 2015. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds that the February 2015 VA examination relating to the Veteran’s low back disability is inadequate for decision-making purposes. The RO requested that the VA examiner indicate whether it is at least as likely as not that the Veteran’s low back disability was caused by, or aggravated by, his service-connected left knee disability. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner stated that the Veteran does not have a current diagnosis of a thoracolumbar spine condition. However, when providing an opinion as to whether the Veteran has a low back disability secondary to his service-connected left knee disability, the VA examiner stated the Veteran has a current diagnosis of degenerative disc disease. As such, the February 2015 VA examination is internally inconsistent. Additionally, the VA examiner opined that the Veteran’s low back disability is not a result of his service-connected left knee disability. As rationale, the VA examiner stated that the Veteran’s low back disability is a result of his age, body habitus and occupational history. The February 2015 VA examiner did not provide an opinion as to whether the Veteran’s low back disability is aggravated by his service-connected left knee disability. As such, the February 2015 VA examination is not adequate for decision-making purposes. The Veteran was provided an addendum opinion relating to his claim in August 2016. The VA examiner reviewed the record and opined that the Veteran’s low back disability is less likely than not proximately due to or the result of his service-connected condition. As rationale, the VA examiner reviewed the medical article submitted by the Veteran and noted that at the February 2015 VA examination, the Veteran did not have an altered gait. The VA examiner again stated that the Veteran’s current low back disability is due to his age, body habitus and occupation. However, the VA examiner did not provide an opinion as to whether the Veteran’s low back disability is aggravated by his service-connected left knee disability. In that regard, the Board notes that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Because the February 2015 VA examination and August 2016 addendum opinion are inadequate for decision-making purposes, the issue must be remanded for a further VA opinion. Barr, 21 Vet. App. at 312. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationale. See Atencio v. O’Rourke, No. 16-1561 (Vet. App. July 6, 2018). As such, on remand, the VA examiner must provide separate findings and rationale relating to causation and aggravation. 2. Entitlement to Service Connection for Anxiety and Depression The Veteran contends that he has anxiety and depression that is secondary to his service-connected left knee disability. See VA Form 21-0820 Report of General Information, received April 2014. The Veteran was provided a VA mental disorders examination in May 2014. The VA examiner reported that the Veteran does not have a current mental disorder diagnosis. However, a review of the Veteran’s medical records reveals that the Veteran has a current diagnosis of anxiety disorder NOS. See, e.g., SSA medical record, received August 2014. As the VA examiner did not discuss the Veteran’s diagnosis of anxiety disorder, the May 2014 VA examination is not adequate for decision-making purposes. See Barr, 21 Vet. App. at 312. As such, the Veteran’s claim for entitlement to service-connection for anxiety and depression must be remanded for a new VA examination. Additionally, on remand, the VA examiner must address the Veteran’s contentions that his anxiety disorder is secondary to his service-connected left knee disability. 3. Entitlement to an Increased Disability Rating for Service-Connected Left Knee Disability The Veteran was most recently provided a VA examination as to his service-connected left knee disability in May 2014. At the examination, the Veteran indicated that he has flare-ups in his service-connected left knee. The Veteran stated that during flare-ups he has additional limitation of range-of-motion. The examiner acknowledged the Veteran’s assertions, but indicated that it would be speculative to state in exact degrees range-of-motion loss during flare-ups. As a rationale for that conclusion, the examiner essentially stated that an opinion could not be provided without personally being present during a flare-up. VA regulations and guidelines anticipate that examiners will offer opinions as to additional functional loss during flare-ups based on estimates derived from information procured from relevant sources, including lay statements from the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. In this case, the examiner acknowledged that the Veteran was not experiencing a flare-up in the left knee at the time of the examination, but did not ascertain by alternative means adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding the reported flare-ups. The examiner also did not explain why it was not feasible to estimate the Veteran’s additional functional loss during flare-ups based on the information that was obtained. Therefore, the May 2014 VA examination does not include all of the information needed to determine whether a higher rating is warranted based on additional functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In view of above, the Board concludes that the May 2014 VA examination is not adequate for rating purposes, and the case must be remanded so that the Veteran may be provided another examination to assess the current nature and severity of his service-connected left knee. Barr, 21 Vet. App. at 312. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from January 2018. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from January 2018. 2. After the above development, forward the record and a copy of this remand to the examiner who conducted the February 2015 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Provide a diagnosis for any low back disability demonstrated since service, found on current examination or in the record. (b.) For each low back disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any low back disability, is related to the Veteran’s active service. (c.) If not, for each low back disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any low back disability is proximately due to or the result of the Veteran’s service-connected disabilities, specifically to include his service-connected left knee disability. (d.) If not, for each low back disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any low back disability was aggravated by the Veteran’s service-connected disabilities, specifically to include his service-connected left knee disability. “Aggravation” is defined as a worsening beyond the natural progression of the disease. Additionally, pursuant to Atencio, the VA examiner must provide separate findings and rationale as to whether the Veteran’s low back disability is caused by, or aggravated by, his service-connected disability(ies). 3. After the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of any mental health disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any mental health disability demonstrated since service, found on current examination or in the record. The VA examiner must address the diagnosis of anxiety disorder found in the Veteran’s medical records. If the examiner disagrees with a diagnosis provided in the medical record, to include the diagnosis of anxiety disorder, the examiner must explain why the diagnosis is not warranted. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any mental health disability, is related to the Veteran’s active service. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that any mental health disability is proximately due to or the result of the Veteran’s service-connected disabilities, specifically to include his service-connected left knee disability. (d.) If not, whether it is at least as likely as not (50 percent or greater probability) that any mental health disability was aggravated by the Veteran’s service-connected disabilities, specifically to include his service-connected left knee disability. “Aggravation” is defined as a worsening beyond the natural progression of the disease. Additionally, the VA examiner must provide separate findings and rationale as to whether the Veteran’s mental health disability is caused by, or aggravated by, his service-connected disability(ies). 4. After the first remand directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left knee disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected left knee disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the left knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s left knee, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a low back disability, service connection for anxiety and depression and an increased rating for left knee disability may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel