Citation Nr: 18140592 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-32 638 DATE: October 4, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder, previously characterized as degenerative joint disease (DJD), status post surgery with residual scar, is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a right hip disorder, claimed as secondary to a right knee disorder, is remanded. Entitlement to service connection for a back disorder, claimed as secondary to a right knee disorder, is remanded. FINDINGS OF FACT 1. In a final decision issued in June 2012, service connection for a right knee disorder, characterized as DJD, status post surgery with residual scar, was denied. 2. Evidence added to the record since the final June 2012 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The June 2012 rating decision that denied service connection for a right knee disorder, characterized as DJD, status post surgery with residual scar, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to May 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 30 days for the receipt of additional evidence; however, none has been received to date. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disorder, previously characterized as DJD, status post surgery with residual scar. The Veteran’s claim for service connection for a right knee disorder, characterized as DJD, status post surgery with residual scar, was originally denied in a June 2012 rating decision. At such time, the Agency of Original Jurisdiction (AOJ) considered the Veteran’s service and post-service treatment records, and a March 2012 VA examination. The AOJ found that such evidence indicated that the Veteran’s right knee disorder neither occurred in nor was caused by his military service. Thus, the AOJ denied service connection for such disorder. In June 2012, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. In this regard, the Board notes that a June 2012 statement was received from the Veteran; however, he did not state that he disagreed with the June 2012 denial. Rather, he apologized for not remembering he had right knee surgery before his military service. Further, no new and material evidence referable to his right knee disorder was physically or constructively associated with the record within one year of the issuance of such decision. In this regard, while private treatment records addressing the current nature of the Veteran’s right knee disorder were received in May 2013, such do not address the etiology of such disorder and, thus, are irrelevant to the basis of the prior final denial. Furthermore, no relevant service department records have since been associated with the record. Therefore, the June 2012 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011) [(2017)]. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the June 2012 final decision includes an April 2014 VA examination that addressed the etiology of the Veteran’s right knee disorder. Additionally, at the August 2016 Board hearing, he testified as to the nature of his claimed in-service injury, and alleged a continuity of right knee symptomatology after service. Consequently, as the newly received evidence addresses the etiology of the Veteran’s right knee disorder, the element found to be lacking in the prior denial, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the June 2012 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claim for service connection for a right knee disorder is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disorder. The Veteran contends that his right knee disorder, currently diagnosed as status post knee replacement (see April 2014 examination), is directly related to his military service. Specifically, at the August 2016 Board hearing, the Veteran stated that he fell off a ladder and landed on his right knee while in service in 1963, and has experienced right knee symptomatology since such time. In this regard, the Board notes that the Veteran’s service treatment records (STRs) include a March 1962 entrance examination, which noted that the Veteran had a post LS 6 inch and 4 inch right patellar (surgery) as an identifying body mark/scar, but his musculoskeletal system and lower extremities were normal upon clinical evaluation. In his contemporaneous March 1962 Report of Medical History, the Veteran reported that he had a knee operation for torn cartilage when he was 16, and the physician noted that the Veteran had no sequelae from his knee operation. During the Veteran’s June 1963 examination upon his entrance to active duty, the examiner noted that he had a post LS 6 inch right patellar as an identifying body mark/scar, but his musculoskeletal system and lower extremities were again normal upon clinical evaluation. In his contemporaneous June 1963 Report of Medical History, the Veteran reported that he had torn cartilage in his right knee that was operated on, and the physician noted that he had torn cartilage in his right knee that was not considered disabling. In July 1963, the Veteran complained of discomfort over the quadriceps and about the right knee made worse by duties aboard ship. He also reported weakness in both knees and pain in the right knee at the site of the previous torn cartilage repair. It was noted that he had weakness in his knees since playing basketball in high school, and had ruptured his medial meniscus and underwent a meniscectomy in 1961. It was further observed that the Veteran able to walk alright, but could not squat or climb ladders well. In this regard, his knees gave away on him when he tried to go up a ladder earlier in the month. Upon physical examination, there was some crepitus of the patella on the right side, but there was no effusion or gross instability of either knee. He also had full range of motion without pain and normal X-rays. The remainder of the STRs are negative for any complaints, treatment, or diagnosis referable to the right knee, and while his May 1965 separation examination again noted his scars, his musculoskeletal system and lower extremities were normal upon clinical evaluation. The Board notes that the presumption of soundness with regard to a right knee disorder attaches as the Veteran’s entrance examination indicates that his musculoskeletal system and lower extremities were normal upon clinical evaluation. See 38 C.F.R. § 3.304(b). Therefore, such may be rebutted only by clear and unmistakable evidence demonstrating that a disorder pre-existed service and was not aggravated by service. In March 2012, the Veteran was afforded a VA examination in connection with his claim. At such time, the examiner diagnosed degenerative joint disease/arthritis, and opined that it was less likely than not that such disorder was incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that there was insufficient information provided to link the claimed injury to subsequent medical care. Further, he noted that it was unlikely that an acute injury would have become symptomatic four years following the reported injury. In this regard, the examiner indicated that the Veteran had stated that, after a short time, he felt good. However, the March 2012 VA examiner did not address whether a right knee disorder pre-existed service despite the documentation that he underwent a meniscectomy prior to service. In April 2014, the Veteran was afforded another VA examination. At such time, the examiner opined that the Veteran’s right knee disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support thereof, the examiner noted that the examination showed that the Veteran’s range of motion deficit was due to his total hip replacement in 2012 and not necessarily the original service-related hip injury. However, the Veteran does not allege nor does the evidence of record indicate that the Veteran injured his hip during his military service. The examiner also noted that there were records of the total knee replacement in 2012, but no treatment records from service regarding the right knee. However, as mentioned previously, the Veteran’s STRs reflect that he did receive treatment regarding his right knee. Therefore, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. 3. Entitlement to service connection for a right hip disorder, claimed as secondary to a right knee disorder. The Veteran contends that his right hip disorder, currently diagnosed as status post hip replacement (see April 2014 VA examination), is secondary to his right knee disorder. In this regard, the Board notes that the April 2014 VA examiner opined that the Veteran’s right hip disorder was at least as likely as not caused by his claimed service connected right knee disorder in that it was at least as likely as not that the right hip was compensating for the defect of the right knee, and caused wear and tear of the right hip. However, the Veteran is not service-connected for a right knee disorder. Thus, the claim for service connection for a right hip disorder is inextricably intertwined with the claim for service connection for a right knee disorder that is remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran’s right hip claim must be deferred pending the outcome of such claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 4. Entitlement to service connection for a back disorder, claimed as secondary to a right knee disorder. The Veteran contends that his back disorder, currently diagnosed as thoracic spondylosis and lumbar spondylosis (see November 2014 VA examination), is secondary to his right knee disorder as he had an altered gait and had to walk differently. The Veteran was afforded a VA examination in November 2014 and, at such time, the examiner opined that the Veteran’s back disorder was less likely than not proximately due to or the result of his right knee disorder. However, the examiner did not provide an adequate rationale for his opinion as he did not explain why the Veteran’s back disorder was not related to his right knee disorder; rather, he noted that the Veteran had a right total knee arthroplasty as well as two remote right knee repairs, but such were not in any way related to his degenerative spine disease. Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the April 2014 knee examination. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the April 2014 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should respond to the following: (A) The examiner should identify all right knee disorders that existed prior to the Veteran’s total knee replacement, to include DJD. (B) For each diagnosed right knee disorder, the examiner should opine as to whether there is clear and unmistakable evidence that such disorder pre-existed service. (i) If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If not, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset during, or is otherwise related to, the Veteran’s military service, to include his fall from a ladder and subsequent right knee complaints in July 1963. (C) The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran had arthritis of right knee that manifested within one year of his May 1965 separation from service, i.e., by May 1966, and, if so, describe the manifestations. In offering such opinions, the examiner must consider and discuss the Veteran’s July 1963 STRs indicating that the Veteran received treatment regarding his right knee that was made worse by duties aboard a ship. The examiner must also consider and discuss the lay statements of record regarding the onset of the Veteran’s right knee disorder and the continuity of symptomatology of the claimed disorder. A rationale for all opinions offered should be provided. 2. Return the record to the VA examiner who conducted the November 2014 back examination. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the November 2014 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disorder, currently diagnosed as thoracic spondylosis and lumbar spondylosis, is caused by or aggravated by the Veteran’s right knee disorder, to include as due to an altered gait or having to walk differently. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel