Citation Nr: 18149586 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-48 714 DATE: November 9, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral knee patellofemoral syndrome is granted. REMANDED The reopened claim of entitlement to service connection for bilateral knee patellofemoral syndrome is remanded. The claim of entitlement to an initial disability rating in excess of 20 percent for residuals of a labral tear with arthritis in the left shoulder, status post Bristow procedure, is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the RO denied service connection for bilateral knee patellofemoral syndrome. The Veteran did not appeal the decision and did not submit new and material evidence within one year. 2. Evidence received since the final January 2010, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for bilateral knee patellofemoral syndrome is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2018). 2. The evidence received since the January 2010 rating decision is new and material as to the claim of service connection for bilateral knee patellofemoral syndrome, and the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and May 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a February 2009 rating decision, the RO denied service connection for bilateral patellofemoral syndrome the evidence did not demonstrate a nexus between the Veteran’s bilateral knee patellofemoral syndrome and in-service paratrooper drops, to include one instance when he landed on his knees. The veteran asked that VA reconsider his claim in an August 2009 statement. Significantly, the statement did not express dissatisfaction or disagreement with the February 2009 decision and indicate a desire to contest the result. Thus, it is considered a request for a reconsideration and not a Notice of Disagreement. 38 C.F.R. § 20.201. In response to the August 2009 statement, the RO again denied the Veteran’s claim in a January 2010 rating decision. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 2010 decision includes the Veteran’ service treatment records, his July 2008 claim, in which he claims he injured both knees in a parachute jump in 1982 or 1983 after landing on his knees, an October 2008 VA examination, and an August 2009 nexus statement from PC, a physician’s assistant. The STRs do not document knee complaints. The examination documents a present diagnosis of bilateral patellofemoral syndrome but a negative nexus opinion. The August 2009 opinion from PC indicates that the knee complaints are related to the Veteran’s service. Evidence submitted after the 2010 decision includes 1) a December 2014 VA examination; 2) an argument in a September 2016 VA Form 9 wherein the Veteran’s representative asserted that the December 2014 VA examination was inadequate due to a failure to diagnose the Veteran’s reported problems and render an opinion on their etiology; and 3) an August 2015 private treatment visit for bilateral knee pain that the Veteran had related to military duty. The Board finds that new and material evidence has not been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a nexus between the Veteran’s service and his current knee complaints. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. In this regard, the December 2014 VA examination is inadequate because there is no opinion that addresses the Veteran’s claim. The Board acknowledges that the examination was not conducted for an active claim at that time, as the Veteran’s claim to reopen was received in April 2015. However, this evidence, in conjunction with the conflicting opinions from the previous claim, and combined with VA’s duty to assist, including the need for a new examination, raises a reasonable possibility of substantiating the claim. Accordingly, for all of the above reasons, the Veteran’s claims are reopened. The reopened claim is addressed in the remand. REASONS FOR REMAND 1. Entitlement to service connection for bilateral patellofemoral syndrome Remand is required to obtain an adequate examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The evidence is in conflict as to whether the Veteran’s bilateral knee patellofemoral syndrome is etiologically related to service. The Veteran’s DD 214 documents his receipt of the Parachute Badge. Thus, in-service wear and tear on his legs is conceded. The October 2008 VA examiner opined that bilateral patellofemoral syndrome was not caused by or the result of the Veteran’s two years of jump status in the early 1980s. The examiner explained that he was unable to relate one jump or a two year history of jumps in the early 1980s to the current complaints. The Veteran did not complain of this problem during his service or seek medical attention after service for knee problems. In contrast, an August 2009 opinion from PC, a physician’s assistant, indicated that the Veteran’s knee problems were most likely as not a result of a parachute jump during his service. The private opinion from August 2009 is inadequate to support the grant of service connection because there is no accompanying rationale. However, the August 2009 opinion provided some suggestion that the Veteran’s bilateral knee complaints were chronic and extended back to his service. The December 2014 VA examination did not provide further insight into this matter. The Board thus finds that an adequate examination should be provided on remand. 2. Entitlement to an initial disability rating in excess of 20 percent for residuals of a labral tear with arthritis in the left shoulder, status post Bristow procedure In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. In addition, in increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2018); Correia v. McDonald, 28 Vet. App. 158 (2016). VA provided an examination in December 2014. While the examiner tested range of motion, the examiner failed to provide range of motion findings in passive, weight-bearing, and nonweight-bearing motion, or with range of motion measurements of the opposite undamaged joint. The examination is thus inadequate for adjudication purposes because it does not comply with the Court’s holding in Correia The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment for the Veteran. 2. Thereafter, provide the Veteran with an appropriate examination to determine the etiology of his bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that bilateral knee patellofemoral syndrome, or any other diagnosed knee disorder, had onset in, or is otherwise etiologically related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service injuries to his knees while serving as a paratrooper, to include wear and tear on his knees through multiple jumps. The examiner must also specifically reconcile the conflicting opinions from the October 2008 VA examination and the 3. Provide the Veteran with an appropriate examination to determine the severity of the service-connected labral tear with arthritis, status post Bristow procedure, left shoulder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the left shoulder in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the right shoulder. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (Continued on the next page)   The examiner is also asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel