Citation Nr: 18142584 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-11 385 DATE: October 16, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection a left knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, including as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for common variable immune deficiency, including as secondary to service-connected sinusitis, is remanded. Entitlement to a rating in excess of 10 percent for right knee patellar strain with status-post meniscectomy with limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee patellar strain with status-post meniscectomy with limitation of extension is remanded. Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder is remanded. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU). FINDINGS OF FACT 1. In a September 2009 rating decision, the RO denied service connection for left knee chondromalacia (left knee disability). Although the Veteran was notified of the decision and his appellate rights in a September 2009 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the decision. 2. The evidence received since the final September 2009 rating decision denying service connection for a left knee disability includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a left knee disability. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying the claim of service connection for a left knee disability is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2009). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a left knee disability. 38 U.S.C. §§ 5107, 5108 (2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1985 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee, and August 2014 and June 2016 rating decisions issued by the RO in Winston-Salem, North Carolina. Jurisdiction is currently with the RO in Winston-Salem, North Carolina. The Board observes that in the Veteran’s June 2014 notice of disagreement for his left knee disability claim, he indicated that he wanted a Board hearing. However, in substantive appeals received in August 2015 and November 2017, he indicated that he no longer wanted the optional Board hearing. Under these circumstances, the Veteran’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2017). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection a left knee disability In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. 7104, 7105 (2014); 38 C.F.R. 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist. Id. at 118. Analysis The Veteran’s claim of service connection for a left knee disability was initially denied in a September 2009 rating decision because the evidence did not show that that the Veteran’s diagnosed left knee disability was related to his service-connected right knee disability nor was there evidence of a left knee disability during military service. The Veteran was notified of the decision and his appellate rights in a September 2009 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the RO’s September 2009 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2009). The Veteran now seeks to reopen the previously denied claim of service connection a left knee disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the September 2009 rating decision included service treatment records, the Veteran’s lay assertions the that claimed left knee disability is secondary to his service-connected right knee disability, and the report of a July 2009 VA examination in which the examiner opined that the left knee disability was not caused by the service-connected right knee disability. The additional evidence received since the final September 2009 rating decision includes additional lay statements indicating that the Veteran’s left knee disability is secondary to his service-connected right knee disability and post-service medical records demonstrating treatment for a left knee disability. Also of record is a March 2011 medical opinion from the Veteran’s treating private physician. That physician indicated that he felt that the Veteran’s left knee problems have been significantly aggravated, if not caused by, his right knee injury from alteration in his gait causing him to put more pressure on the left knee. A July 2016 VA examination report has also been associated with the claims file. The examiner opined that although the Veteran’s right knee disability could have promoted a left knee condition due to favoring that side, the Veteran’s history of a tibia/fibula fracture could also be a contributing factor. Another confounding factor is that the two left knee surgeries were performed prior to the right knee surgery, which makes it unlikely that the right knee disability caused the left knee disability. He determined that the current left knee disability cannot be said to have been incurred due to the right knee condition without resort to speculation. Lastly, in April 2017, the Veteran submitted a private medical opinion in which the physician indicated that the Veteran’s right knee disability caused his left condition to worsen beyond its natural progression. The Board has carefully considered the record, with particular attention to the additional evidence received since the final September 2009 rating decision. After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection for a left knee disability. In this regard, the previous claim was denied because there was no evidence that the Veteran’s left knee disability was diagnosed during active service and there was no evidence indicating that the claimed disability is secondary to the Veteran’s service-connected right knee disability. As detailed herein, the evidence subsequent to the September 2009 rating decision includes medicals opinion in which the physicians indicated that the Veteran’s left knee disability is secondary to a service-connected disability. The Board finds that this evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claim and would trigger VA’s duty to provide a medical examination to determine the etiology of the Veteran’s left knee disability. 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Veteran’s previously denied claim of service connection for a left knee disability disorder is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefit sought. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, is remanded. The Veteran assert that service connection is warranted for a left knee disability. Specifically, he contends that the claimed disability is secondary to his service-connected right knee disability. As noted herein, a number of medical opinions have been provided regarding the etiology of the Veteran’s left knee disability. However, as detailed below, the Board finds that the opinions are insufficient to adjudicate the left knee claim on appeal. In a May 2011 medical opinion from the Veteran’s treating physician, he opined that he felt that the Veteran’s left knee problems have been significantly aggravated, if not caused by, his right knee injury from alteration in his gait causing him to put more pressure on the left knee. However, the physician did not provide a baseline level of severity prior to aggravation. To the extent that he concludes that the left knee disability is caused by the service-connected right knee disability, he did not discuss the impact of previous tibia/fibula injury on the current left knee disability. In the July 2016 VA medical opinion, the examiner opined that although the Veteran’s right knee disability could have promoted a left knee condition due to favoring that side, the Veteran’s history of a tibia/fibula fracture could also be a contributing factor. Another confounding factor is that the two left knee surgeries were performed prior to the right knee surgery, which makes it unlikely that the right knee disability caused the left knee disability. He determined that the current left knee disability cannot be said to have been incurred due to the right knee condition without resort to speculation. Notwithstanding, the examiner did not discuss aggravation of the Veteran’s left knee disability by his service-connected right knee disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Lastly, in the private medical opinion received in April 2017, the physician indicated that the Veteran’s right knee disability caused his left condition to worsen beyond its natural progression. However, he did not provide a rationale to support his finding. In light of the foregoing, an additional VA examination must be provided and an opinion obtained on remand. 2. Entitlement to service connection for common variable immune deficiency, including as secondary to service-connected sinusitis, is remanded. The Veteran asserts that service connection is warranted for common variable immune deficiency. He asserts that the disability is secondary to his service-connected sinusitis. The Veteran underwent a VA examination in May 2014, at which time common variable immune deficiency was diagnosed. Following evaluation of the Veteran, the examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected disability. In support of his conclusion, the examiner noted that sinusitis does not cause immune deficiency. However, the examiner did not discuss aggravation of the Veteran’s common variable immune deficiency by his service-connected sinusitis. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board observes that in December 2014, the Veteran provided a private medical opinion dated in September 2014. The physician indicated that he provided treatment for the Veteran’s common variable immunodeficiency with associated reoccurring upper respiratory infections, specifically of the sinuses. He indicated that the Veteran suffers from chronic sinus infections secondary to his common variable immunodeficiency. While the physician has indicated that the Veteran’s sinusitis is secondary to his common variable immunodeficiency, he did not provide a rationale, rendering the opinion of limited probative value. In light of the foregoing, an additional VA examination must be provided and an opinion obtained on remand. 3. Entitlement to a rating in excess of 10 percent for right knee patellar strain with status-post meniscectomy with limitation of flexion and entitlement to an initial rating in excess of 10 percent for right knee patellar strain with status-post meniscectomy with limitation of extension are remanded. The Board observes that since the Agency of Original Jurisdiction (AOJ) last considered the increased rating claims for the Veteran’s service-connected right knee disability in a February 2016 Statement of the Case, pertinent evidence has been associated with the record on appeal. Such evidence includes the report of a July 2016 VA knee and lower leg conditions disability examination. Because the AOJ has not yet considered this additional evidence and because the Veteran has not waived initial AOJ consideration of this additional evidence, a remand is necessary. 38 C.F.R. § 20.1304 (2017) (providing that any pertinent evidence submitted by the Veteran must be referred to the RO for review, unless this procedural right is waived by the Veteran); see also 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2017) (providing for the issuance of a Supplemental Statement of the Case where additional pertinent evidence is received after the issuance of a Statement of the Case or a prior Supplemental Statement of the Case). 4. Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder is remanded. The Board observes that since the AOJ last considered the increased rating claim for the Veteran’s service-connected psychiatric disability in an April 2017 Statement of the Case, pertinent evidence has been associated with the record on appeal. Such evidence includes the report of an October 2017 VA mental health examination. Because the AOJ has not yet considered this additional evidence and because the Veteran has not waived initial AOJ consideration of this additional evidence, a remand is necessary. Id. 5. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU). The issue of entitlement to a TDIU has been raised by the record. In this regard, in correspondence from the Veteran’s former representative received in September 2017, it was reported that the Veteran is unemployable due to his service-connected psychiatric disability. A claim for a total rating based on individual unemployability, either expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO has not yet considered this issue in the first instance. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the AOJ should develop a claim for TDIU. The matters are REMANDED for the following action: 1. Provide all required notice in response to the TDIU claim, to include providing and requesting the Veteran to complete and return the appropriate form to claim entitlement to a TDIU. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his left knee disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner must identify all left knee disabilities diagnosed since January 2012. Thereafter, the examiner is to provide opinions to the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee disability was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee disability was caused by his service-connected right knee disability? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s left knee disability has been aggravated (chronically worsened) by his service-connected right knee disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. In providing the requested medical opinions, the examiner must discuss the May 2011 private medical opinion, the July 2016 VA medical opinion, and the private medical opinion received in April 2017. The examiner must also discuss the left tibia/fibula injury and the relationship, if any, to any current left knee disability. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his common variable immune deficiency. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner is to provide opinions to the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s common variable immune deficiency was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s common variable immune deficiency was caused by his service-connected sinusitis? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s common variable immune deficiency has been aggravated (chronically worsened) by his service-connected sinusitis? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. In providing the requested medical opinions, the examiner must discuss the May 2014 VA medical opinion, the September 2014 private medical opinion, and the articles regarding common variable immune deficiency. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel