Citation Nr: 18142834 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-04 251 DATE: October 17, 2018 ORDER The petition to reopen the claim of service connection for a lumbar spine disorder, to include degenerative arthritis and sciatica, secondary to service-connected left ankle osteoarthritis is granted. The petition to reopen the claim of service connection for a left hip disorder, to include degenerative arthritis, osteoarthritis and trochanteric bursitis, secondary to service-connected left ankle osteoarthritis is granted. The petition to reopen the claim of service connection for a left knee disorder, to include internal derangement, degenerative arthritis and osteoarthritis, secondary to service-connected left ankle osteoarthritis is granted. Service connection for a lumbar spine disorder, to include degenerative arthritis and sciatica, secondary to service-connected left ankle osteoarthritis is granted. Service connection for a left hip disorder, to include degenerative arthritis, osteoarthritis and trochanteric bursitis, secondary to service-connected left ankle osteoarthritis is granted. Service connection for a left knee disorder, to include internal derangement, degenerative arthritis and osteoarthritis, secondary to service-connected left ankle osteoarthritis is granted. FINDINGS OF FACT 1. In January 2010, VA denied the claims of service connection for a lumbar spine disorder, left hip disorder and left knee disorder, secondary to service-connected left ankle osteoarthritis. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. The Veteran subsequently submitted a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued. However, the Veteran did not submit a timely substantive appeal. 2. The additional documentation submitted since the January 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claims of service connection for a lumbar spine disorder, left hip disorder and left knee disorder, secondary to service-connected left ankle osteoarthritis. 3. With resolution of the doubt in his favor, the Veteran’s lumbar spine disorder was caused by his service-connected left ankle osteoarthritis. 4. With resolution of the doubt in his favor, the Veteran’s left hip disorder was caused by his service-connected left ankle osteoarthritis. 5. With resolution of the doubt in his favor, the Veteran’s left knee disorder was caused by his service-connected left ankle osteoarthritis. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for a lumbar spine disorder, left hip disorder and left knee disorder, secondary to service-connected left ankle osteoarthritis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claims of service connection for a lumbar spine disorder, left hip disorder and left knee disorder, secondary to service-connected left ankle osteoarthritis has been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for a lumbar spine disorder, secondary to service-connected left ankle osteoarthritis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 4. The criteria to establish service connection for a left hip disorder, secondary to service-connected left ankle osteoarthritis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 5. The criteria to establish service connection for a left knee disorder, secondary to service-connected left ankle osteoarthritis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1961 to December 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Pittsburgh, Pennsylvania Regional Office (RO). In August 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Reopening Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In the January 2010 rating decision, the RO denied the underlying claims because the September 2009 VA examiner opined that the Veteran’s lumbar spine disorder and left hip disorder was not caused or aggravated by his service-connected left ankle osteoarthritis and the December 2009 VA examiner opined that the Veteran’s left knee disorder was not caused or aggravated by his service-connected left ankle osteoarthritis. Although notified of this decision, the Veteran submitted a timely NOD but did not submit a timely substantive appeal or new and material evidence within one year of the notification of the rating decision. The denial is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 3.156(a) (2017). Evidence submitted since the final January 2010 rating decision consists of private treatment records dated January 2011, April 2014 and December 2014 with D.E., M.D.; an October 2011 statement from the Veteran’s significant other; a January 2014 letter from S.C., D.C., the Veteran’s private chiropractor; a May 2014 statement from the Veteran; an August 2018 Board hearing transcript and an August 2018 letter from D.E., M.D., the Veteran’s private physician. The private treatment records with Dr. D.E. reflect relevant diagnoses and the Veteran’s reports of experiencing left hip and left knee pain. The October 2011 statement from the Veteran’s significant other reflects her observations of the Veteran’s abnormal gait. The January 2014 letter from Dr. S.C. reflects a lumbar spine diagnosis and a positive etiology opinion. The May 2014 statement from the Veteran indicates his report of experiencing an abnormal gait, left knee, left hip and back pain. The August 2018 Board hearing transcript reflects the Veteran’s testimony of favoring his left side due to his service-connected left ankle osteoarthritis. The August 2018 letter from Dr. D.E. reflects relevant diagnoses and positive etiology opinions. Service connection for a lumbar spine, left hip and left knee disorder In his September 2013 petition to reopen the underlying claims, the Veteran re-asserted that his lumbar spine disorder, left hip disorder and left knee disorder was caused by his abnormal gait due to his service-connected left ankle osteoarthritis. This is the only theory of service connection raised by the Veteran or the record and the Board will limit its analysis to this theory. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In September 2009, the Veteran was afforded a VA examination. He reported having to constantly change his gait due to the pain from his service-connected left ankle osteoarthritis. The Veteran was diagnosed with left hip degenerative change and lumbar spine degenerative arthritis. The examiner opined that the Veteran’s left hip disorder and lumbar spine disorder were not caused or aggravated by his service-connected left ankle osteoarthritis because his leg length was normal, there was no credible medical literature that related degenerative changes of the left hip and lumbar spine to left ankle osteoarthritis, and no scientific or medical evidence to support the assertion that an abnormal gait due to left ankle osteoarthritis causes or aggravates degenerative change. The examiner also noted that degenerative changes in the left hip and lumbar spine is not unusual for persons with advancing age. In December 2009, the Veteran was afforded another VA examination. He was diagnosed with left knee internal derangement. The examiner opined that the Veteran’s left knee disorder was not caused or aggravated by his service-connected left ankle osteoarthritis because his leg length was normal and there was no credible medical or scientific literature that linked left ankle osteoarthritis to left knee internal derangement. Private treatment records dated January 2011, April 2014 and December 2014 with Dr. D.E. reflect the Veteran’s reports of experiencing lumbar spine, left hip and left knee pain. The April 2014 private treatment record reflects the Veteran’s diagnoses of left knee arthritis and left hip trochanteric bursitis. It was also noted that the Veteran had an abnormal gait. The December 2014 private treatment record reflects the Veteran’s diagnoses of left knee arthritis and left hip trochanteric bursitis. It was also noted that the Veteran’s abnormal walk was “bothering” his back. In an October 2011 statement, the Veteran’s significant other reported having observed the Veteran walk with an abnormal gait due to his left ankle osteoarthritis. In a January 2014 letter, Dr. S.C., the Veteran’s private chiropractor, diagnosed the Veteran with lumbar spine sciatica. Dr. S.C. opined that the Veteran’s left ankle osteoarthritis had led to decreased mobility and stability which resulted in an altered gait. Dr. S.C. explained that the Veteran’s altered gait caused compensatory distortion on the sacroiliac and lumbar joints which has resulted in low back pain and sciatica. In a May 2014 statement, the Veteran reported that his gait was abnormal upon returning from service and that he developed lumbar spine, left knee and left hip pain. In his August 2018 Board hearing, the Veteran testified having favored his left side which has led to lumbar spine, left knee and left hip pain. In an August 2018 letter, Dr. D.E., the Veteran’s private provider, diagnosed the Veteran with left hip osteoarthritis and left knee osteoarthritis. Dr. D.E. opined that the Veteran’s left hip disorder and left knee disorder was caused by his service-connected left ankle osteoarthritis because his left ankle osteoarthritis has resulted in a gait abnormality and trouble with balance which has led to multiple falls. The examiner also noted that the Veteran did not have a right lower extremity abnormality. The Board will grant based on the benefit of the doubt doctrine. The September 2009 VA examiner opined that the Veteran’s left hip disorder and lumbar spine disorder was not caused or aggravated by his service-connected left ankle osteoarthritis. Dr. S.C., the Veteran’s private chiropractor, and Dr. D.E., the Veteran’s private provider, opined that the Veteran’s lumbar spine disorder and left hip disorder was caused by an altered gait due to his service-connected left ankle osteoarthritis. The Board will resolve all reasonable doubt in favor of the Veteran. Furthermore, the December 2009 VA examiner opined that the Veteran’s left knee disorder was not caused or aggravated by his service-connected left ankle osteoarthritis. Dr. D.E. opined that the Veteran’s left knee disorder was caused by his service-connected left ankle osteoarthritis. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claims are granted. The present decision is based on the record in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel