Citation Nr: 18148637 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-21 181 DATE: November 8, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for total left knee replacement, is reopened. Entitlement to service connection for total left knee replacement, to include as due to service-connected distal tibia and right ankle joint deformity, secondary to severe comminuted fracture with status post below the knee amputation (right lower leg amputation) is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an October 2006 rating decision, the RO denied service connection for total left knee replacement; as the Veteran did not perfect an appeal, the October 2006 decision became final. 2. The evidence received since the October 2006 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for total left knee replacement. 3. The evidence is in at least relative equipoise as to whether the Veteran’s total left knee replacement was cause or aggravated by his service-connected right lower leg amputation. CONCLUSIONS OF LAW 1. The October 2006 rating decision, that denied service connection for total left knee replacement is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for total left knee replacement. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria of entitlement to service connection for total left knee replacement have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to May 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Whether new and material evidence has been submitted to reopen the claim of service connection for total left knee replacement Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 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.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for total left knee replacement. The claim was previously denied in an October 2006 rating decision. The RO denied the Veteran’s claim because the evidence submitted failed to show his total left knee replacement was caused or aggravated by his service-connected right lower leg amputation. The Veteran was provided with notification of the October 2006 rating decision and of his procedural and appellate rights. The Veteran did not perfect an appeal and the October 2006 rating decision which denied service connection for total left knee replacement became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Subsequent to the October 2006 rating decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show a possibility that his total left knee replacement was caused or aggravated by his service-connected right lower leg amputation. Specifically, medical treatment records received May 2013 from the Veteran’s VA treating physician noted that his left knee is a direct result of him compensating for his service-connected amputation of the right leg. See Medical Treatment Records. Accordingly, this evidence is sufficient to reopen the previously-denied claim of entitlement to service connection for total left knee replacement. See 38 C.F.R. § 3.156 (a). Entitlement to service connection for total left knee replacement Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). “Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was ‘noted’ during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology.” Id. citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). Here, resolving all reasonable doubt on behalf of the Veteran, the Veteran’s total left knee replacement was caused by his service-connected right lower leg amputation. The record reflects a medical opinion was provided by the Veteran’s VA treating physician who indicated that due to the Veteran right lower leg amputation he developed degenerative joint disease of the left knee. The examiner further noted that due to him compensating for his right leg, the Veteran eventually required a total replacement of the left knee. The examiner concluded that the Veteran left knee is a direct result of him compensating from his service-connected amputation of the right leg. Conversely, in the October 2013 VA medical opinion, the examiner opined that the Veteran fractured the distal femur of the left thigh close to the left knee when he was 17 years old which was treated with pins and cast which, the examiner opined, most likely resulted in the development of degenerative arthritis of the left knee status post total knee replacement and less than likely as not related to his right leg amputation. The Board finds that both opinions rendered by VA physicians are equally probative as both clearly stated an opinion, which was supported by adequate rationale. Thus, the evidence is in at least relative equipoise as to whether the Veteran’s total left knee replacement was caused or aggravated by his service-connected right lower leg amputation. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for total left knee replacement is warranted. REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Board finds an additional examination is needed to obtain the current severity of the Veteran’s bilateral hearing loss. The record reflects the Veteran last underwent VA examination in October 2013. Remand is necessary to determine the current severity of the Veteran’s disability. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected bilateral hearing loss. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The electronic claims file, including a copy of this remand should be reviewed in conjunction with this examination. (Continued on the next page)   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD McDuffie, Kerstin