Citation Nr: 18147659 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-39 433 DATE: November 5, 2018 ORDER New and material evidence has been received to reopen the claim for service connection for a left knee condition. REMANDED Entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a right knee injury, is remanded. Entitlement to a compensable disability rating for service-connected posttraumatic headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A March 2009 rating decision denied service connection for a left knee condition based on findings that there was no evidence supporting a current left knee condition that was related to the Veteran’s military service; the Veteran submitted a notice of disagreement but did not perfect his appeal. 2. Evidence submitted since the March 2009 final rating decision is not cumulative or redundant of evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for left knee condition as secondary to service-connected residuals of right knee injury and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied service connection for a left knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.302, 20.1103. 2. Evidence received after the March 2009 rating decision is new and material and serves to reopen the Veteran’s claim of entitlement to service connection for left knee condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1973 to October 1974. New and Material Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen the claim for service connection for a left knee condition. A March 2009 rating decision denied the Veteran’s claim for service connection for a left knee condition on the basis that the evidence of record did not show a relationship between his claimed condition and his service. The Veteran initiated an appeal of that denial, but did not perfect it by filing a substantive appeal within the prescribed time period. Thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.302, 20.1103. In February 2013, the Veteran filed a claim to reopen. Evidence received since the March 2009 rating decision includes statements from the Veteran in which he asserts that his left knee condition is related causally to his service-connected residuals of a right knee injury. This evidence is new in that it had not been previously submitted. It is also material insofar as it presents a new theory of entitlement to be considered; namely, whether the Veteran’s left knee condition may granted service connection secondary to his service-connected residuals of a right knee injury. As this additional evidence is both new and material, the claim for entitlement to service connection for a left knee condition is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a right knee injury, is remanded. The June 2013 VA examiner diagnosed the Veteran with degenerative joint disease in the left knee but found that the condition was less likely than not proximately due to or the result of the Veteran’s service-connected right knee injury. In so finding, the examiner stated that problems in one knee do not cause problems in the other knee and explained that because individuals use both legs to walk, when they are having problems with one knee, they will be off both knees more. However, the medical opinion provided in this examination is inadequate as it fails to address whether the Veteran’s service-connected right knee injury could have aggravated the Veteran’s left knee condition. Additionally, the Veteran has submitted private medical treatment records from September 2016 in which the doctor clearly indicates that the ongoing problems in the Veteran’s right knee has caused his left knee to be the dominant knee as far as lifting and climbing. As such, this puts added stress on the knee, and it is not unusual for the left knee then to begin to wear as the function in the right knee deteriorates. See March 2018 correspondence. While this record does not provide a clear medical opinion regarding aggravation, it raises the possibility. In light of the inadequate VA medical opinion combined with the private treatment record which raises the reasonable the possibility of aggravation of the Veteran’s left knee by his right knee, the Board finds an addendum medical opinion is needed prior to adjudicating this claim. 2. Entitlement to a compensable disability rating for service-connected posttraumatic headaches is remanded. In a March 2018 statement, the Veteran’s representative asserted that the Veteran’s headaches were prostrating and warranted a compensable disability rating. See statement. In particular, the representative argued that the June 2013 VA examiner failed to note that the Veteran’s headaches were prostrating, despite his described symptoms. Additionally, the Veteran provided a calendar from August through October 2016 that documents his symptoms and headache severity, which appears more severe than concluded by the examiner. In light of the representative’s arguments questioning the accuracy of the Veteran’s last VA examination in 2013 as well as evidence that his headaches may have worsened since 2013, the Board finds the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the headaches. 3. Entitlement to a TDIU is remanded. Lastly, the Board finds that the claim of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a compensable disability rating for service-connected posttraumatic headaches because a decision on the latter claim may have an impact on the former claim. Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes the record does not reflect the Veteran’s submission of a VA Form 21-8940, which should be obtained to assist with adjudication of this issue. The matters are REMANDED for the following actions: 1. Provide the Veteran with notice of the laws and regulations governing a TDIU and request that he complete and return a VA Form 21-8940. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee condition. The examiner must opine whether it is at least as likely as not (1) proximately due to the Veteran’s service-connected residuals of a right knee injury, or (2) aggravated beyond its natural progression by that service-connected disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and current severity of his service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to headaches alone and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel