Citation Nr: 18143762 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-35 176 DATE: October 23, 2018 ORDER The petition to reopen the claim of service connection for lumbar spine degenerative disc disease (DDD), secondary to service-connected status-post right knee anterior cruciate ligament (ACL) reconstruction is granted. The petition to reopen the claim of service connection for left knee degenerative joint disease (DJD), secondary to service-connected status-post right knee anterior cruciate ligament reconstruction is granted. Service connection for lumbar spine degenerative disc disease, secondary to service-connected status-post right knee anterior cruciate ligament reconstruction is denied. Service connection for left knee degenerative joint disease, secondary to service-connected status-post right knee anterior cruciate ligament reconstruction is denied. FINDINGS OF FACT 1. In January 2004, VA denied service connection for lumbar spine degenerative disc disease and left knee degenerative joint disease, secondary to the Veteran’s service-connected right knee disorder. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. The Veteran did not subsequently submit a notice of disagreement (NOD). 2. The additional documentation submitted since the January 2004 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for lumbar spine degenerative disc disease and left knee degenerative joint disease, secondary to the Veteran’s service-connected right knee disorder. 3. The Veteran’s lumbar spine degenerative disc disease was not caused or aggravated by his service-connected right knee disorder. 4. The Veteran’s left knee degenerative joint disease was not caused or aggravated by his service-connected right knee disorder. CONCLUSIONS OF LAW 1. The January 2004 rating decision denying service connection for lumbar spine degenerative disc disease and left knee degenerative joint disease, secondary to the Veteran’s service-connected right knee disorder 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 lumbar spine degenerative disc disease and left knee degenerative joint disease, secondary to the Veteran’s service-connected right knee disorder has been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for lumbar spine degenerative disc disease, secondary to the Veteran’s service-connected right knee disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 4. The criteria to establish service connection for left knee degenerative joint disease, secondary to the Veteran’s service-connected right knee disorder have not 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. Navy from June 1991 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Louisville, Kentucky Regional Office (RO). In August 2018, the Veteran was scheduled for a hearing before a member of the Board. However, the Veteran did not report to this hearing, did not offer good cause and did not request that the hearing be rescheduled. Therefore, the Veteran’s request is construed as withdrawn. 38 C.F.R. § 20.704 (2017). Reopening of lumbar spine DDD and left knee DJD 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 2004 rating decision, the RO denied the Veteran’s claims of service connection for lumbar spine DDD and left knee DJD, secondary to the Veteran’s service-connected right knee disorder because the VA treatment records only reflected the Veteran’s reports of experiencing low back pain, did not suggest a left knee disorder and did not provide etiology opinions. Although notified of this decision, the Veteran did not initiate an appeal or submit new and material evidence within one year 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 2004 rating decision consists of the Veteran’s written statements, VA examinations dated December 2013 and April 2016, and VA treatment records dated May 2000 to February 2016. The Veteran’s written statements and VA treatment records reflect the Veteran’s reports of experiencing low back and left knee pain, and diagnoses of lumbar spine DDD and left knee DJD. The VA examinations revealed that the Veteran has lumbar spine DDD and left knee DJD. The RO provided the Veteran with a VA examination in December 2013 and April 2016 for his lumbar spine DDD and left knee DJD. By affording the Veteran new VA examinations after the Veteran submitted his petition to reopen, VA conducted a de facto reopening of the claims. See Falzone v. Brown, 8 Vet. App. 398, 404 (1995). Service Connection for lumbar spine DDD and left knee DJD 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 his January 2013 petition to reopen, the Veteran asserted that his lumbar spine DDD and left knee DJD resulted from his service-connected right knee disorder. 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). VA treatment records from March 2001 to February 2016 reflect the Veteran’s reports of experiencing low back and left knee pain, and diagnoses of lumbar spine DDD and left knee DJD. During medical treatment for these disorders, medical care providers also noted that the Veteran was overweight, ranging from 233 to 240 pounds. In December 2013, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s left knee DJD was caused by normal age progression and not his service-connected right knee disorder because the medical records showed no evidence of a left knee disorder until 2013 and there was no evidence to indicate that an abnormal gait or abnormal shoe wear pattern resulted in altered weight-bearing. The examiner also opined that the Veteran’s lumbar spine DDD was not caused by his service-connected right knee disorder because the medical records indicated that the Veteran’s low back pain resulted from a post-service motor vehicle accident and a seven-year period beginning in 1994, the year that the Veteran had right knee surgery, with no low back complaints. In April 2016, the Veteran was afforded another VA examination. The examiner indicated that it was speculative to opine whether the Veteran’s left knee DJD and lumbar spine DDD was aggravated by his service-connected right knee disorder because in addition to the Veteran’s obesity, he has many complicated large joint and spinal diagnoses that affect his joint and spine degeneration and cannot be separated out. The April 2016 VA examiner’s opinion is adequate because she gave a well-reasoned explanation as to why she could not provide an etiology opinion without resorting to speculation, including a review of all available evidence. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (holding that a conclusion that no opinion can be offered as to a diagnosis or etiology without resorting to speculation is adequate where it is “clear on the record” that the inability to offer an opinion is “not the first impression of an uninformed examiner, but rather an assessment arrived after all due diligence in seeking relevant medical information that may have bearing on the requested opinion”). A preponderance of the evidence is against a finding that the Veteran’s left knee DJD and lumbar spine DDD was caused or aggravated by his service-connected right knee disorder. VA treatment records reflect the Veteran’s reports of experiencing left knee and low back pain without etiology opinions. In addition, the December 2013 VA examined opined that the Veteran’s left knee DJD and lumbar spine DDD was not caused by his service-connected right knee disorder. (Continued on the next page)   Although the April 2016 VA examiner indicated it would be speculative to provide an etiology opinion, she noted that the Veteran’s obesity and other non-service connected disorders have played a role in his left knee DJD and lumbar spine DDD. Significantly, no competent medical provider has opined that the Veteran’s left knee DJD and lumbar spine DDD was caused or aggravated by his service-connected right knee disorder. Therefore, service connection is not warranted and the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel