Citation Nr: 18150887 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-29 802 DATE: November 16, 2018 ORDER No new and material evidence having been received, the request to reopen the claim of entitlement to service connection for a right knee disability is denied. Entitlement to a rating of 10 percent for limitation of extension of the left knee is granted. REMANDED Entitlement to service connection for left shin/lower leg disability is remanded. Entitlement to service connection for left shin scarring is remanded. Entitlement to service connection for right foot disability is remanded. Entitlement to an increased rating for status post left knee reconstruction with chronic knee pain, currently rated as 20 percent disabling, is remanded. FINDINGS OF FACT 1. An April 2012 rating decision denied service connection for a right knee disability; the Veteran did not appeal that decision, and VA did not receive new and material evidence within one year after the decision. 2. Since the April 2012 rating decision, no new and material evidence related to the issue of service connection for a right knee disability has been received. 3. The evidence shows that the Veteran has left knee extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The April 2012 denial of service connection for a right disability became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. No new and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to a rating of 10 percent limitation of extension of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated May 2014, January 2015, and June 2015. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a right knee disability. The Veteran first raised the issue of service connection for a right knee disability in June 2006. The RO denied the claim in an April 2012 rating decision. Then, in December 2013, the Veteran submitted a request to reopen the claim. In May 2014, the RO denied the Veteran’s request to reopen. This decision is on appeal. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. As mentioned, the RO denied the claim in an April 2012 rating decision. There is no argument or indication that the Veteran appealed that decision, or that VA received new and material evidence within one year after the decision. As such, the April 2012 denial of service connection for the right knee became final. The April 2012 rating decision denied service connection based on a finding of not in-service event or injury and that the Veteran’s right knee disability is less likely than not related to his service-connected left knee disability. This rating decision primarily relied on a VA examiner’s opinion that found it less likely than not that the Veteran’s right knee was related to service-connected left knee. In doing so, the examiner noted the Veteran’s statement regarding over use of his right leg due to left knee. Since the April 2012 rating decision, VA has not received new and material evidence to reopen the claim. Rather, the Veteran has reiterated his assertion that he overcompensates for his service-connected left knee with his right knee. This argument was considered by the April 2012 rating decision. The Veteran has not submitted any competent evidence to establish that his right knee disability is secondary to his service-connected left knee disability. The Veteran is not competent to establish such a nexus, as this requires specialized medical expertise. In his February 2015 notice of disagreement, the Veteran introduced a new theory of entitlement. He asserted that he injured his right knee during an October 2014 slip and fall that was caused by his service-connected left knee disability. While the Veteran is competent to report a right knee injury, the Board finds that his report of a right knee injury is not credible. Private treatment records show that the Veteran fell from a ladder and sought treatment for lacerations to his left shin as well as right ankle pain. These records are silent regarding right knee signs/symptoms or complaints. These private records are contemporaneous to the Veteran’s slip and fall and, as such, are probative and given more weight than any statements made during the present appeal process. As VA has not received new and material evidence that raises a reasonable probability of substantiating the Veteran’s claim of service connection for the right knee, the Board has no choice but to deny the Veteran’s request to reopen.   2. Entitlement to an increased rating for status post left knee reconstruction with chronic knee pain, currently rated as 20 percent disabling The issue of a higher rating for the Veteran’s service-connected left knee disability stems from a January 2015 rating decision that decreased the rating for this disability from 20 percent to 0 percent, effective April 1, 2015. The Veteran appealed this decision via a February 2015 notice of disagreement. In it, he asserted that he was entitled to rating of 30 percent. In a July 2016 rating decision, the RO restored the previously decreased rating of 20 percent for the Veteran’s service-connected left knee disability. It was noted that his left knee rating was reduced as the VAMC was not able to contact the Veteran to schedule a VA examination. As the Veteran expressed willingness to attend and one was conducted in July 2016. In view of this, the issue of whether the January 2015 rating reduction was proper is moot. Notwithstanding, the issue of a rating higher than 20 percent for the Veteran’s left knee disability remains on appeal. See July 2016 SOC; July 2015 Form 9. The Veteran’s left knee disability, characterized as status post left knee reconstruction with chronic pain, is currently rated as 20 percent disabling under DC 5258. (For the period prior to April 1, 2015, it was rated as 20 percent disabling under DC 5259-5257.) As explained below, the Board is remanding for a new VA knee examination. The Board, however, finds that the evidence already of record supports a rating of 10 percent under DC 5261, for limitation of extension. In this regard, a July 2016 VA examination shows left knee extension limited to 10 degrees. The next-higher rating is not warranted based on the evidence of record as extension has not been limited to 15 degrees. The Board is not addressing any other aspect of the Veteran’s left knee disability picture and will assess such at a later point in time. REASONS FOR REMAND 1. Entitlement to service connection for left shin/lower leg disability is remanded. 2. Entitlement to service connection for left shin scarring is remanded. 3. Entitlement to service connection for right foot disability is remanded. The Veteran raised the issue of service connection for a right foot disability in a February 2015 notice of disagreement and claim. The RO denied service connection for this issue in a June 2015 rating decision. The Veteran seeks secondary service connection for left shin/lower leg (to include scarring) and right foot disabilities. He asserts that these disabilities are secondary to a slip and fall caused by his service-connected left knee disability. Private treatment records show that, in October 2014, the Veteran sought emergency treatment for pain and two lacerations to the anterior aspect of the left shin. One day later, he also sought treatment for right ankle pain. The extent to which the service-connected left knee disability contributed to the Veteran’s October 2014 slip and fall is unclear. As this is essentially a medical question, VA should obtain a medical opinion from a VA examiner. 4. Entitlement to an increased rating for status post left knee reconstruction with chronic knee pain, currently rated as 20 percent disabling, is remanded. The Veteran underwent a VA knee examination in July 2016. The examination report that the Veteran reported flare-ups, described as constant pain, not being able to kneel, squat, bend or go up and down staircases or ladder. The Veteran also reported functional impairment as a need to stop working, ice his knee, and rest for 10-15 minutes; this occurs four to five times per day, during work. Range of motion testing shows flexion limited to 55 degrees and extension limited to 10 degrees. Regarding additional loss of motion with repeated use or during flare-ups, the examiner stated that she was unable to say without mere speculation, as there was insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability. She restated this conclusion by indicated that based on the available evidence and exam findings, it was not possible, without resorting to speculation, to predict within a reasonable degree of medical certainty, a potential loss of range of motion manifested as a consequence of repeated use, flare-ups, or exacerbations outside the clinical setting. The Board finds that this statement does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Significantly, the examiner did not indicate that her inability to assess any additional functional loss was due to lack of knowledge within the medical community. Thus, a new examination is necessary. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records. 2. After associating any records with the claims file, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left knee disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, please assess the extent of any additional functional loss during flare-ups and describe it in terms of degrees of range of motion. If the examiner cannot provide the requested calculation without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shin/lower leg and right foot/ankle disabilities, to include any left shin scarring. For each current disability, the examiner must opine whether it 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. The examiner should address the Veteran’s assertion that, in October 2014, his service-connected left knee disability caused him to slip and fall while going up a staircase/ladder, resulting in his claimed left shin/lower leg and right foot/ankle disabilities, to include left shin scarring. Private treatment records (in VBMS, received October 9, 2014) show treatment for these injuries. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel