Citation Nr: 18146249 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-00 954 DATE: October 31, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee/leg condition is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a right knee/leg condition is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a left knee/leg condition is remanded. Entitlement to service connection for a right knee/leg condition is remanded. Entitlement to service connection for a lumbar spine condition, including arthritis, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for a sinus condition is remanded. Entitlement to an initial compensable rating for vasomotor rhinitis is remanded. FINDINGS OF FACT 1. A December 1991 decision declined to reopen the Veteran’s claim of service connection for a right knee/leg condition; the Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within a year of its issuance. 2. A December 1998 decision declined to reopen the Veteran’s claim of service connection for a left knee and leg condition; the Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within a year of its issuance. 3. Evidence received since the December 1991 and December 1998 decisions relates to unestablished facts necessary to substantiate the claims of service connection for left and right knee and leg conditions; and raises a reasonable possibility of substantiating such claims. CONCLUSIONS OF LAW 1. The December 1991 decision that declined to reopen a claim for service connection for a right knee and leg condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The December 1998 decision that declined to reopen a claim for service connection for a left knee and leg condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received, and the claim for service connection for a bilateral knee and leg condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to December 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and material evidence Whether new and material evidence has been received to reopen claims for entitlement to service connection for left and right knee/leg conditions Initially, the Veteran has asserted that he is entitled to service connection for a left and right knee/leg condition. The Veteran originally filed a claim for bilateral knee and leg conditions in January 1990 and was denied service connection in a June 1990 rating decision based on a finding that he did not have a bilateral knee/leg disability that was incurred during active duty. The Veteran was notified of the decision in July 1990. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following notification. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In August 1991, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, requesting that his claim be reconsidered. In a December 1991 decision, the RO declined to reopen the Veteran’s claims of service connection for right and left knee/leg conditions. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following notification. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Therefore, the December 1991 decision is final. The Veteran subsequently filed to reopen the claim of service connection for a left leg condition in September 1998. In a December 1998 decision, the RO declined to reopen the Veteran’s claim of service connection for a left leg condition. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following notification. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Therefore, the December 1998 decision is final as to the issue of service connection for a left leg condition. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence associated with the claims file after the December 1991 and December 1998 decisions includes correspondence of March 2012 and October 2013 and private and VA treatment records. The evidence listed above is new in that it was not of record at the time of the December 1991 and December 1998 decisions. In the March 2012 correspondence, the Veteran alleged he has chronic pain, swelling, and stiffness in both knees, which makes it difficult to do daily activities or effectively and efficiently perform his job. The correspondence is also material as the claim was initially denied in part based on the premise that the Veteran did not have a chronic current condition. Since the existence of a current condition was the basis for denial of the claims for left and right knee conditions, this new evidence relates to an unestablished fact necessary to substantiate the claims and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claims for service connection for left and right knee/leg conditions, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for left and right knee/leg conditions. As the claim for service connection for left and right knee and leg conditions is reopened, the Board must now shift to evaluating the claim on the merits. Unfortunately, a remand is necessary. The Board notes that the Veteran was provided a VA examination in March 1990 in conjunction with his initial claim for service connection, wherein the VA examiner found the Veteran did not have a current disability. In his March 2012 correspondence, the Veteran argued that he has chronic left and right knee pain, swelling, and stiffness which impacts his ability to do normal daily activities and that he experiences flare-ups when the weather changes, which limits his range of motion and causes chronic pain. In his October 2013 correspondence the Veteran argued that his left and right knee conditions were worsening. He also noted that supporting documentation and locations of treatment would be provided as required, indicating that the Veteran receives treatment for his claimed condition. The United States Court of Appeals for Veterans Claims (Court) held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain resulting in functional impairment could constitute a current disability. As the Veteran has reported functional loss due to his left and right knee pain, the Board finds the Veteran’s claim must be remanded for a current VA examination and medical opinion to be obtained. 2. Entitlement to service connection for a lumbar spine condition, hypertension, and insomnia. The Veteran also claims that he is entitled to service connection for a lumbar spine condition, hypertension, and insomnia. The Board cannot make a fully-informed decision on the issue of service connection for these conditioins because no VA examiner has opined whether the condition is related to his active duty service. According to McLendon v. Nicholson, a VA examination must be provided where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain disease manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 20 Vet. App. 79, 81 (2006). As related to the claim for arthritis of the lumbar spine, the Veteran argued in March 2012 correspondence that while he was on jump status in the service his back began to hurt and that the pain has worsened as the years have passed for which he has taken medication to manage. In December 2013 VA treatment records, the Veteran was diagnosed with mild to moderate multi-level degenerative disc disease with intervertebral disc syndrome of the lumbar spine. The Board therefore finds that the elements of McLendon have been met and the Veteran is entitled to a VA examination to determine the nature and etiology of arthritis of the lumbar spine. 20 Vet. App. at 80. As related to the claim for hypertension, the Veteran argued in March 2012 correspondence that the stress of his job in the military led to the development of hypertension. April 2014 VA treatment records reflect a diagnosis of hypertension. The Board finds that again, the elements of McLendon have been met and the Veteran is also entitled to a VA examination to assess the nature and etiology of hypertension. Id. Finally, as related to the claim for insomnia, the Veteran argued in March 2012 correspondence that he had difficulty sleeping in service and has been taking treatment for the condition. November 2014 VA treatment records reflect a diagnosis of insomnia. As such, the Board also finds that the elements of McLendon have been met and the Veteran is also entitled to a VA examination to assess the nature and etiology of hypertension. Id. 3. Entitlement to service connection for left foot and right foot conditions. The Veteran also argues that he is entitled to service connection for left and right foot conditions. The Veteran underwent a VA foot examination in August 2013, wherein the Veteran reported that foot pain began in 1985 or 1986 while he was running and administering a physical fitness test and that he ran almost every day. The VA examiner noted a diagnosis of right foot degenerative joint disease. He did not provide a diagnosis of the left foot. The VA examiner opined that the Veteran’s right foot degenerative joint disease is not related to his service because he had no cited right foot injury or complaint in service. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that the August 2013 VA foot examination is inadequate for rating purposes. First, in March 2012 correspondence from the Veteran, he argued that pain started during service while he was on jump status from jumping, running, and marching. He also argued that he had chronic pain, swelling, and stiffness in his feet with intermittent sharp pain in the feet which make it difficult to walk at times. In describing the documents reviewed, the VA examiner did not indicate that he reviewed or considered this March 2012 correspondence from the Veteran. Further, the opinion is contradictory as the examiner noted that the Veteran claimed pain began in 1985 or 1986 as well as the circumstances of the pain developing but then indicated that the Veteran did not have any complaints in service. Additionally, the VA examiner did not appear to consider the Veteran’s left foot upon examination. Further, the Veteran was diagnosed with peroneal tendonitis of the left foot in December 2005, which was not considered or discussed. In light of each problem noted above, the Board finds that the August 2013 VA foot examination was inadequate and upon remand, the Veteran is entitled to another VA examination and medical opinion considering both feet. 4. Entitlement to a compensable rating for bilateral hearing loss, a sinus condition, and vasomotor rhinitis. The Veteran is currently service connected for bilateral hearing loss, a sinus condition, and vasomotor rhinitis, all rated as noncompensable. The Veteran was last provided a VA examination for bilateral hearing loss in July 2013 and for his sinus condition and vasomotor rhinitis in August 2013. In his October 2013 correspondence, the Veteran argued that his conditions continue to worsen. Therefore, in light of the Veteran’s claims of worsening since the VA examinations, the claims must be remanded to address the current severity of symptoms of the service-connected conditions. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Lastly, as referenced above, the Veteran has repeatedly indicated that he is in receipt of treatment for each of his conditions discussed herein. While the record does contain both VA and private medical records, upon remand the Veteran should be provided with the opportunity to identify each treatment provider for each condition; and as necessary, upon completion of the necessary VA Form 21-4142, Authorization for Release of Information, updated records should be obtained. The matters are REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him a completed VA Form 21-4142, obtain any records identified by the Veteran from applicable private treatment providers for all of his claimed conditions. Obtain the Veteran’s VA treatment records from November 2014 to the present. 2. After completion of 1, schedule the Veteran for examinations by the appropriate clinicians to determine the nature and etiology of the Veteran’s claimed left and right knee conditions, lumbar spine condition, including arthritis, hypertension, insomnia, right foot condition, including arthritis, and left foot condition, including peroneal tendonitis. Each examining clinician must opine as to whether it is at least as likely as not that the Veteran’s claimed conditions are at least as likely as not related to his active service. In providing an opinion for the bilateral knees/legs, lumbar spine, and bilateral feet, the examiner should consider the Veteran’s competent reports of pain as due to jump status and pain developed as a result of running, jumping, and marching. In providing an opinion for all of the claimed conditions, the examiner should consider the Veteran’s competent reports regarding continuity of symptomatology since service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completion of 1, schedule the Veteran for the appropriate VA examinations to determine the current nature and severity of his service-connected bilateral hearing loss, sinus condition, and vasomotor rhinitis. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The clinician should identify the nature and severity of all manifestations of the Veteran’s service-connected conditions. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel