Citation Nr: 18150275 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-41 191 DATE: November 15, 2018 ORDER The Veteran’s petition to reopen a claim for entitlement to service connection for a left elbow disorder is granted. The Veteran’s petition to reopen a claim for entitlement to service connection for right ankle disorder is granted. REMANDED Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to a disability rating in excess of 10 percent disability for left knee status post anterior cruciate ligament reconstruction with osteoarthritis is remanded. Entitlement to a disability rating in excess of 10 percent disability for right knee status post anterior cruciate ligament reconstruction with osteoarthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for instability of the right knee, associated with status post anterior cruciate ligament reconstruction with osteoarthritis, is remanded. Entitlement to a compensable disability rating for right hip condition, associated with status post anterior cruciate ligament reconstruction with osteoarthritis, is remanded. FINDINGS OF FACT 1. The December 2008 rating decision the denied the claims of service connection for a left elbow disorder and service connection for a right ankle disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the December 2008 rating decision is new and material and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a left elbow disorder and right ankle disorder. CONCLUSIONS OF LAW 1. The December 2008 rating decision denying the claims of service connection for a left elbow disorder and a right ankle disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the service connection claim for a left elbow disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received to reopen the service connection claim for a right ankle disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran’s DD214 reflects that he served on active duty from June 1999 to September 2007, and had three years, 11 months, and three days of prior inactive duty. It appears that this time refers to the Veteran’s attendance at the United States Air Force Academy as a cadet from 1995 to 1999. Under 38 C.F.R. § 3.6 (b)(4) (2018), active duty includes service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy. Therefore, under VA regulations, his time as a cadet is considered active duty. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Claims to Reopen Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). In a March 2008 rating decision, the RO denied entitlement to service connection for ankle and left elbow disabilities, finding that there was no evidence that a current disability had been diagnosed. The RO noted that the Veteran had not reported to his VA examinations. In a December 2008 rating decision, the RO noted that the Veteran had undergone a VA examination in October 2008 which reflected that service treatment records did not show any treatment for the Veteran’s right ankle, and that upon examination, the right ankle was normal. With regard to his left elbow, the RO noted that service treatment records did not show treatment or diagnosis of a disorder of his left elbow. Further, in an October 2008 VA examination, the Veteran reported that he had a popping sensation in his left elbow when he turned a certain way since injuring himself at a football game in 1997. The claim was denied as the medical evidence of record failed to show a diagnosis of a left elbow disorder. The Veteran did not file a notice of disagreement with the December 2008 rating decision, and no new and material evidence was submitted during in the year following the issuance of the December 2008 rating decision. As such, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). Since the December 2008 rating decision, substantial pertinent evidence has been added to the claims file. For example, the Veteran was provided with a VA examination in November 2014, which reflected a diagnosis of osteoarthritis of the right ankle. In addition, the Veteran submitted a service treatment record reflecting a diagnosis in December 1997 of nerve palsy of the left elbow. This evidence is new as it was not before the adjudicator in December 2008. The Board also finds that the new evidence is material because it reflects current diagnoses, fulfilling an element of a service connection claim, which was not the case at the time of the 2008 rating decision. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for right ankle and left elbow disorders. Hence, the appeal to this extent is allowed. REASONS FOR REMAND The Veteran has contended that he has a current left elbow disorder that is related to an injury that occurred in 1997 while playing football for the United Stated Air Force Academy. He submitted a medical record dated in December 1997 showing treatment for his left elbow. The Veteran now contends that his left elbow pops and causes discomfort. As such, the Veteran should be provided with a VA examination to determine whether he has a current disability of the left elbow associated with active duty service. The Veteran has contended that he has a current right ankle disability that is related to service or is secondary to his service-connected bilateral knee and right hip disabilities. The Veteran was provided with a VA examination in November 2014; however, the examination is internally inconsistent, as the examiner noted that the Veteran had osteoarthritis in his right ankle, but also opined that the examination of his right ankle was normal and did not diagnose a right ankle disorder. The examiner therefore did not provide an opinion. On remand, the Veteran should be provided with a VA examination to determine whether he has a current right ankle disability that is related to service or to a service-connected disability. With regard to a current disability, the Board notes the holding in the recent Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), which requires the RO to schedule the Veteran for a VA examination to determine whether the Veteran's right ankle or left elbow pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided. The Board notes that, since the most recent November 2014 bilateral knee and right hip VA examinations, the Court of Appeals for Veterans Claims (Court), issued a decision finding that 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. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Court recently held that an examiner must obtain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means in order to estimate functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). As the November 2014 examinations do not comply with the requirements set out in Correia or Sharp, the Veteran should be provided with examinations of his knees and right hip that address these requirements. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. Schedule the Veteran for a VA ankle examination to assist in determining the nature and etiology of the Veteran’s claimed right ankle disorder. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) List all current diagnoses relating to the Veteran’s right ankle. (Note: if no diagnosis, state whether pain causes impairment of right ankle). (b.) For each diagnosed disorder, opine as to whether it, at least as likely as not (50 percent or greater), began during the Veteran’s military service or is otherwise related to it. (c.) If not related to service, state whether the Veteran’s right ankle disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (d.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA elbow examination to assist in determining the nature and etiology of the Veteran’s claimed left elbow disorder. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) List all current diagnoses relating to the Veteran’s left elbow, to include any nerve disorder. (Note: if no diagnosis, state whether pain causes impairment of right ankle). (b.) For each diagnosed disorder, opine as to whether it, at least as likely as not (50 percent or greater), began during the Veteran’s military service or is otherwise related to it. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 4. Schedule the Veteran for an examination of the current severity of his bilateral knee and right hip disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 bilateral knee and right hip disabilities alone and discuss the effect of these disabilities on any occupational functioning and activities of daily living. 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). 5. Then, readjudicate the issues on appeal. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith