Citation Nr: 18142436 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-03 298 DATE: October 15, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for a right knee disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to an initial compensable rating for residual scar associated with status post laceration of achilles and peroneus brevis tendon with tendinosis multiple tendons is remanded. Entitlement to a rating in excess of 20 percent for status post laceration of achilles and peroneus brevis tendon with tendinosis multiple tendons is remanded. FINDING OF FACT A March 2010 rating decision denied entitlement to service connection for a right knee disorder. Evidence received subsequent to March 2010 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right knee disorder. CONCLUSION OF LAW Evidence received since the March 2010 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right knee disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1967 to August 1971. In July 2018, a video hearing was held before the undersigned. A transcript of that hearing is of record. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In March 2010, the RO denied the Veteran’s claim of entitlement to service connection for a right knee disorder. Part of the reason for this denial was the lack of evidence of a nexus between service or the Veteran’s right ankle injury. In his July 2018 hearing transcript, the Veteran states that he has an altered gait due to his right ankle disorder. The Veteran argues that this ankle-related altered gait has caused his right knee disorder. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. Regarding the Veteran’s knee disorder, a new examination and opinion are required because the March 2014 VA knee examination and associated opinions do not address entitlement to service connection of all knee disorders on a direct basis and do not address the secondary service connection based on the Veteran’s ankle-associated altered gait. See July 2018 hearing testimony; November 2014 informal conference report; November 2014 third-party correspondence. Specifically, the March 2014 VA knee examination indicates meniscal chondorcalcinosis that “could represent pseudogout” and a right knee sprain. The March 2014 and April 2014 VA medical opinions address pseudogout only, but not the right knee sprain. Regarding secondary service connection, the April 2014 examiner addresses the Veteran’s right ankle disorders, but does not address whether any of the Veteran’s right knee disorders could be related to the altered gait associated with the Veteran’s right ankle disorder. As these subjects have not been addressed, an addendum opinion is required. The Board does not at this time find that the March 2014 and April 2014 VA medical opinions are inadequate with regard to the subjects that they do address. Additionally, regarding pseudogout, the Veteran’s prior representative has submitted web pages suggesting that the existence of pseudogout supports a diagnosis of arthritis. See November 2014 web documents (received 11/19/14). On Remand, the examiner should also address these web pages. 2. Entitlement to an initial compensable rating for residual scar associated with status post laceration of achilles and peroneus brevis tendon with tendinosis multiple tendons is remanded. In the July 2018 hearing transcript, the Veteran states that his right heel scar is “limiting the movement of [a] ligament.” It is not clear which ligament he is addressing, and whether this limitation could constitute a foot disorder independent of his service-connected right ankle disorder. On Remand, a foot examination and opinion are required. 3. Entitlement to a rating in excess of 20 percent for status post laceration of achilles and peroneus brevis tendon with tendinosis multiple tendons is remanded. The examinations required to assess the Veteran’s scar disorder could impact the rating of his right ankle disorder. Since disposition of the increased rating for an ankle disorder is intertwined with the scar claim, a decision on the ankle disorder claim would at this point be premature. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from November 2014 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from November 2014 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed right knee disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed right knee disorders, including but not limited to right knee sprain, meniscal chondrocalcinosis, and pseudogout. In discussing pseudogout, the examiner should address the webpages submitted on November 19, 2014, which suggest that the existence of pseudogout supports a diagnosis of arthritis. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed right knee disorder was incurred in the Veteran’s service, including in-service reports of pain, stiffness, and swelling. In rendering this opinion, the examiner should also address reports of in-service meniscus tears, as reported in service treatment records (STRs) dated June 1970 (page 17 of 54) and October 1970 (page 12 of 54). The examiner should also address STRs suggesting chondromalacia, as reported in April 1970 (“may be due to clinically undetectable chondromalacia,” page 16 of 54) and October 1970 (noting prior “chondromalica [sic],” page 12 of 54). The examiner should also address the April 1970 STR (page 16 of 54) stating that the Veteran “has at most arthralgias, not arthritis.” (c.) Whether the Veteran has any current or previously-diagnosed right knee disorder that (i) is proximately due to the Veteran’s service-connected right ankle disorder or (ii) was aggravated by the Veteran’s service-connected right ankle disorder. In rendering this opinion, the examiner should address whether any altered gait associated with the Veteran’s right ankle disorder caused any current right knee disorder. The examiner should also address whether the presence of in-service bone fragments in the Veteran’s right ankle, as reported in December 1969 STRs (pages 18 and 21 of 54), could have caused a current right knee disorder. In rendering these opinions, the examiner should consider the March 2014 VA knee examination, the March 2014 VA medical opinion, and the April 2014 VA medical opinion. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an appropriate examination to assess the current severity of the right ankle scar, to include whether the Veteran’s right ankle scar limits the movement of any tendons in his ankle or foot. The Veteran should then provide the following opinions: (a.) Whether any scar-based tendon limitation constitutes a disorder that is distinct from the Veteran’s service-connected right ankle disorder. (b.) If yes, whether it is at least as likely as not (a 50 percent or better probability) that any such disorder (i) is proximately due to the Veteran’s service-connected right ankle scar disorder or (ii) was aggravated by the Veteran’s service-connected right ankle scar disorder. In rendering this opinion, the examiner should consider the February 2014 VA scar examination, the February 2014 VA ankle examination, and the Veteran’s July 2018 hearing testimony. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel