Citation Nr: 18140934 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-31 102 DATE: October 9, 2018 ORDER The Veteran’s petition to reopen his claim for entitlement to service connection for a left knee disorder is granted. Entitlement to service connection for a left knee disorder, secondary to the Veteran’s service-connected right knee disability, is granted. REMANDED Entitlement to an increased evaluation for the Veteran’s service-connected right knee instability is remanded. Entitlement to an increased evaluation for service-connected range of motion limitations in the Veteran’s right knee is remanded. FINDINGS OF FACT 1. An unappealed July 2005 rating decision denied the Veteran’s claim for entitlement to service connection a left knee disorder, to include as secondary to the Veteran’s service-connected right knee disability. 2. A November 2017 VA Form 21-0960M-9, Knee and Lower Leg Conditions Disability Benefits Questionnaire, completed by Dr. N.I., which is new to the record since the RO’s July 2005 rating decision, relates to unsubstantiated fact and raises the reasonable possibility that the Veteran will prevail on his claim for entitlement to service connection for a left knee disorder. 3. The Veteran’s diagnosed arthritis of the left knee disability is proximately due to his service-connected right knee disability. CONCLUSIONS OF LAW 1. The July 2005 rating decision denying entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2018). 2. New and material evidence has been received since the July 2005 rating decision denying entitlement to service connection a left knee disorder; the claim for entitlement to service connection for a right knee disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for arthritis of the left knee have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1987 to October 1987. In November 2017, the Veteran testified before the undersigned Veterans Law Judge in a Videoconference Board Hearing. A transcript of that hearing is of record. Petition to Reopen Irrespective of the RO’s actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Id. § 5108. New evidence means evidence not previously submitted to agency decision-makers. 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). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The RO denied the Veteran’s claim for entitlement to service connection for a left knee disorder in a July 2005 rating decision. Notice of the decision was provided to the Veteran in July 2005. The Veteran did not appeal that decision and new and material evidence was not received within one year of that decision. Accordingly, the RO’s July 2005 rating decision is final. The Veteran petitioned to reopen his claim for entitlement to service connection for a left knee disorder in August 2009. The record includes a November 2017 VA Form 21-0960M-9, Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), completed by Dr. N.I. in which Dr. N.I. concludes that the Veteran’s left knee disorder is secondary to his service-connected right knee disability. This DBQ post-dates the RO’s July 2005 rating decision and is thus new to the record. The DBQ also relates to unestablished facts necessary to substantiate the Veteran’s claim and raises a reasonable possibility of substantiating that claim. Accordingly, the Veteran’s petitions to reopen his claim for entitlement to service connection for a left knee disability is granted. Service Connection Entitlement to Service Connection for a Left Knee Disorder Secondary to the Veteran’s Service-Connected Right Knee Disability The DBQ completed by Dr. N.I. notes a December 2015 diagnosis of osteoarthritis of the left knee. The Veteran is service-connected for a right knee disability, effective April 1992. Accordingly, the first and second elements of secondary service connection are satisfied. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447–48 (1995). Regarding the third element of secondary service connection, the November 2017 DBQ completed by Dr. N.I. attributes the Veteran’s left knee disorder to his service-connected right knee disability. Dr. N.I. reasons that the Veteran’s right knee disorder altered his gait and caused the Veteran’s left knee disorder (arthritis). Dr. N.I.’s opinion is probative. It is based on a physical examination of the Veteran and Dr. N.I.’s history of treating the Veteran. The record also includes a June 2005 VA examination in which the examiner concluded that the Veteran’s left knee disorder is not etiologically related to the Veteran’s active service or his service-connected right knee disorder. This opinion is not probative because the examiner did not provide a rationale to aid the Board in adjudicating the Veteran’s appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Because Dr. N.I.’s opinion is probative and the June 2005 VA examiner’s opinion is not, the third element of secondary service connection is met. In light of the foregoing, entitlement to secondary service connection for a right knee disorder is granted. REASONS FOR REMAND The Veteran’s Claims for Increased Evaluations for Right Knee Instability and Limited Range of Motion in the Right Knee Are Remanded The Veteran was last afforded a VA examination for his service-connected right knee disability in February 2010. The mere passage of time does not render a VA examination inadequate to adjudicate a veteran’s claim; however, the Veteran testified in November 2017 that his right knee disability has worsened since his most recent examination. Consistent with the Veteran’s testimony, the November 2017 DBQ completed by Dr. N.I. includes range of motion measurements indicating that the Veteran has lost range of motion in his right knee since February 2010. Accordingly, the Board finds that contemporaneous VA medical examination is necessary to determine the current severity of the Veteran’s service-connected right knee disability. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA’s duty to assist includes providing a contemporaneous medical examination where a service-connected disability has become worse). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2013 to Present. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. N.I. and any other private providers treating his bilateral knee disabilities. Make two requests for the authorized records from Dr. N.I. and any other private providers, if identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel