Citation Nr: 18144022 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 18-15 899 DATE: October 23, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left hip sprain is reopened; to this extent only, the Veteran’s appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for left knee degenerative joint disease is reopened; to this extent only, the Veteran’s appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for left ankle degenerative joint disease is reopened; to this extent only, the Veteran’s appeal is granted. REMANDED Entitlement to service connection for a left hip sprain, as secondary to service connected degenerative disc disease of the lumbar spine, right knee degenerative joint disease and/or right lower extremity radiculopathy, is remanded. Entitlement to service connection for left knee degenerative joint disease, as secondary to service connected degenerative disc disease of the lumbar spine, right knee degenerative joint disease and/or right lower extremity radiculopathy, is remanded. Entitlement to service connection for left ankle degenerative joint disease, as secondary to service connected degenerative disc disease of the lumbar spine, right knee degenerative joint disease and/or right lower extremity radiculopathy, is remanded. FINDINGS OF FACT 1. Service connection for left hip sprain, left ankle degenerative joint disease, and left knee degenerative joint disease were denied in a June 2014 rating decision in part on the basis that there was no evidence that the disabilities were related to service. 2. The Veteran did not file a notice of disagreement for the June 2014 rating decision, and that decision became final. 3. Evidence received since the June 2014 rating decision relates to unestablished facts necessary to substantiate the service connection claims for a left hip sprain, left knee degenerative joint disease, and left ankle degenerative joint disease. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran’s claim for service connection for a left hip sprain is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran’s claim for service connection for left knee degenerative joint disease is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has been received, and the Veteran’s claim for service connection for left ankle degenerative joint disease is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to December 1992. This case comes before the Board of Veterans’ Appeals (Board) from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. New and Material Evidence The claims of entitlement to service connection for a left hip sprain, entitlement to service connection for left knee degenerative joint disease, and entitlement to service connection for left ankle degenerative joint disease were initially denied in a June 2014 rating decision. The RO noted that the Veteran had current diagnoses of the claimed conditions, but a VA examiner found that they were less likely as not a result of his service connected back condition. A claim which has been finally denied 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 (2012), 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the June 2014 rating decision includes a May 2017 VA examination for the ankle and hip, as well as a July 2017 VA examination for the knee. A medical opinion with regards to the etiology of the claimed conditions was also submitted in July 2017. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of an in-service stressor; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claims is appropriate. REASONS FOR REMAND Service connection for a Left Hip Sprain, Left Knee Degenerative Joint Disease, Left Ankle Degenerative Joint Disease. The Veteran alleges that his service connected right knee disorder and/or sciatica resulted in his left hip strain, left knee degenerative joint disease and left ankle degenerative joint disease as he compensates for the pain with an abnormal gait. A February 2014 VA Disability Benefits Questionnaire (DBQ) report found that it was less likely than not that the Veteran’s left knee condition, left hip condition and left ankle condition were proximately due to or a result of his service connected lumbar spine condition as there was no evidence of persistent, severe enough complications from the lumbar spine to induce constant abnormal gait that could have contributed over time to the eventual development of this condition. However, an opinion on aggravation was not provided. The Veteran received a VA examination in July 2017 and the examiner noted diagnoses a left hip strain, left ankle arthritis, and left knee arthritis. The examiner opined, however, that the conditions were less likely than not due to the Veteran’s service-connected right knee condition. Unfortunately, the examiner’s opinions were inadequate, as he provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran should also be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disorders. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. These VA treatment records include updated VA treatment records dated from March 2017 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the July 2018 examiner for an addendum opinion. If the examiner who drafted the July 2018 report is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left hip sprain was aggravated by his lumbar spine degenerative disc disease, right knee degenerative joint disease and/or right lower extremity radiculopathy? Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should specifically address the Veteran’s argument that his right lower extremity disabilities cause pain, that he has an abnormal gait as a result of overcompensating for this pain, and that his current disability is the result. If the examiner finds that the Veteran’s left hip sprain has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left hip sprain was caused by his right knee degenerative joint disease? (C) The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee degenerative joint disease was aggravated by his degenerative disc disease of the lumbar spine, right knee degenerative joint disease and/or right lower extremity radiculopathy. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should specifically address the Veteran’s argument that his right lower extremity disabilities cause pain, that he has an abnormal gait as a result of overcompensating for this pain, and that his current disability is the result. If the examiner finds that the Veteran’s left knee degenerative joint disease has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. (D) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee degenerative joint disease was caused by his right knee degenerative joint disease? (E) The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ankle degenerative joint disease was aggravated by his degenerative disc disease of the lumbar spine, right knee degenerative joint disease and/or right lower extremity radiculopathy. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should specifically address the Veteran’s argument that his right lower extremity disabilities cause pain, that he has an abnormal gait as a result of overcompensating for this pain, and that his current disability is the result. If the examiner finds that the Veteran’s left ankle degenerative joint disease has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. (F) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left ankle degenerative joint disease was caused by his right knee degenerative joint disease? The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel