Citation Nr: 18151893 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-31 801 DATE: November 20, 2018 ORDER As new and material evidence has not been received, the previously denied claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is not reopened. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is denied. REMANDED Entitlement to a compensable disability rating for a right cicatrix bone graft from the right ilium with osteoarthritis of the right hip is remanded. Entitlement to a disability rating greater than 10 percent for residuals of a right tibia and fibula fracture with arthritic changes of the right knee is remanded. Entitlement to an initial rating greater than 10 percent for degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine is remanded. FINDINGS OF FACT 1. In a rating decision dated on September 12, 2003, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, a claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee (which was characterized as a left leg disability, including as secondary to service-connected post-operative residuals fracture, right tibia and fibula); this decision was not appealed and became final. 2. The evidence received since the September 2003 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for a left knee disability and does not relate to an unestablished fact necessary to substantiate this claim. 3. The record evidence shows that the Veteran does not experience any current left hip disability or bilateral lower extremity radiculopathy which is attributable to active service. CONCLUSIONS OF LAW 1. The September 2003 rating decision, which denied a claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 2. Evidence received since the September 2003 rating decision in support of the claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to October 1977. The Board observes that, in a September 2003 rating decision, the AOJ denied the Veteran’s claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee (which was characterized as a left leg disability, including as secondary to service-connected post-operative residuals fracture, right tibia and fibula). The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7104 (West 2012). He also did not submit any relevant evidence or argument within 1 year of the September 2003 rating decisions which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is as stated above. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that, in a May 2016 rating decision, the AOJ granted a claim of service connection for degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine, assigning an initial 10 percent rating effective February 1, 2013. The AOJ also granted a claim of service connection for arthritic changes of the right knee, combining this disability with the Veteran’s service-connected residuals of a right tibia and fibula fracture and assigning a single 10 percent rating effective February 1, 2013. The AOJ finally granted a claim of service connection for osteoarthritis of the right hip, combining this disability with the Veteran’s service-connected residuals of a right cicatrix bone graft from the right ilium and assigning a zero percent rating effective February 1, 2013. The AOJ noted that the Veteran’s service-connected arthritic changes of the right knee were considered part and parcel of his service-connected residuals of a right tibia and fibula fracture and his service-connected osteoarthritis of the right hip was considered part and parcel of his service-connected residuals of a right cicatrix bone graft from the right ilium. The Veteran disagreed with this decision in a May 2017 VA Form 21-0958, seeking a higher initial rating for his service-connected degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine and increased ratings for his service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee and service-connected residuals of a right cicatrix bone graft from the right ilium with osteoarthritis of the right hip. Having reviewed the record evidence, and because the increased rating claims for service-connected arthritic changes of the right knee and for service-connected osteoarthritis of the right hip are considered part and parcel of the increased ratings currently being remanded in this decision, the Board finds that it has jurisdiction over the increased rating claims listed in the May 2017 VA Form 21 0958. These claims are addressed further in the remand portion of the decision below. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA may waive timely filing of substantive appeal implicitly or explicitly and as to any issue or claim raised in substantive appeal). The Board next notes that, in his May 2017 VA Form 21-0958, the Veteran also requested earlier effective dates for the grants of service connection for residuals of a right tibia and fibula fracture with arthritic changes of the right knee and service-connected residuals of a right cicatrix bone graft from the right ilium with osteoarthritis of the right hip. The Board acknowledges that service connection has been in effect for residuals of a right tibia and fibula fracture and for residuals of a right cicatrix bone grant from the right ilium since October 12, 1977 (the day after the date of the Veteran’s discharge from active service). The AOJ granted both of these claims in a January 1978 rating decision which was not appealed and became final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). Although it appears that the AOJ recharacterized these disabilities in the May 2016 rating decision (as discussed above), the fact remains that service connection has been in effect for these disabilities for several decades. The Board observes in this regard that the Court has prohibited appellants from disturbing the finality of prior rating actions by filing freestanding earlier effective date claims. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting a collateral attack on a final rating action by filing a freestanding earlier effective date claim). To the extent that the Veteran is attempting to disturb the finality of the January 1978 rating decision by filing earlier effective date claims in his May 2017 VA Form 21-0958, the Board finds that these claims must be dismissed. Id. Service Connection The Veteran essentially contends that new and material evidence has been received sufficient to reopen his previously denied claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. He also contends that he incurred a left hip disability and radiculopathy of the bilateral lower extremities during active service. He alternatively contends that his service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee caused or aggravated (permanently worsened) his claimed radiculopathy of the bilateral lower extremities. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). 1. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee The Board finds that the preponderance of the evidence is against granting the Veteran’s request to reopen his previously denied claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. Despite the Veteran’s assertions to the contrary, the newly received evidence does not support reopening this claim. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that his previously denied service connection claim for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, be reopened in a letter from his attorney which was dated on January 30, 2013, and received by the AOJ on February 1, 2013. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied service connection claim for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, the evidence before VA at the time of the prior final AOJ decision in September 2003 consisted of his available service treatment records and post-service VA outpatient treatment records and examination reports. The AOJ concluded that the record evidence did not show that the Veteran’s claimed left knee disability (which was characterized as a left leg disability) was related to active service or any incident of service, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. Thus, the claim was denied. The newly received evidence still does not indicate that the Veteran experiences any left knee disability which could be attributed to active service or any incident of service, including as due to his service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. The evidence received since September 2003 consists of additional VA outpatient treatment records and examination reports and lay statements. This evidence does not show that the Veteran has been diagnosed as having a left knee disability which could be attributed to active service or any incident of service, including as due to his service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. The Board finds it highly persuasive in this regard that, on VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in February 2016, no left knee (or left leg) condition was diagnosed. The Board also finds it highly persuasive that, following this examination, a VA clinician opined in March 2016 that there was no left knee pathology shown on the examination or on x-rays which could be attributed to active service or any incident of service, including as due to the Veteran’s service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. In other words, the Board finds that the evidence received since September 2003 is duplicative of evidence previously considered by the AOJ in adjudicating the Veteran’s claim. The Board next notes that the United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s request to reopen his previously denied service connection claims for a left knee disability, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening this claim. Unlike in Shade, there is no evidence in this case – either previously considered in the September 2003 AOJ decision, which denied a claim of service connection for a left knee disability, or received since this decision became final – which demonstrates that any claimed left knee disability is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s request to reopen his previously denied service connection claim for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. In summary, as new and material evidence has not been received, the previously denied claim of service connection for a left knee disability, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is not reopened. 2. Entitlement to service connection for a left hip disability and for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee The Board next finds that the preponderance of the evidence is against granting the Veteran’s claims of service connection for a left hip disability and for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. The Veteran contends that he incurred a left hip disability and radiculopathy of the bilateral lower extremities during active service and experienced continuous post-service disability due to each of these claimed disabilities. He alternatively contends that his service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee caused or aggravated (permanently worsened) his claimed radiculopathy of the bilateral lower extremities. The record evidence does not support the Veteran’s assertions regarding the existence of any current left hip disability or radiculopathy of the bilateral lower extremities which could be attributable to active service. It shows instead that the Veteran does not experience any current left hip disability or radiculopathy of the bilateral lower extremities which is related to active service. For example, the Veteran’s available service treatment records show no complaints of or treatment for a left hip disability or for radiculopathy of the bilateral lower extremities at any time during active service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran’s claims of service connection for a left hip disability and for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee. It shows instead that he does not experience any current left hip disability or radiculopathy of the bilateral lower extremities which could be attributable to active service or any incident of service. For example, on VA hip and thigh conditions DBQ in May 2014, no left hip complaints were noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Range of motion testing of the left hip was normal. On VA back (thoracolumbar spine) conditions DBQ in May 2014, no complaints of radiculopathy were noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed no radiculopathy. On VA hip and thigh conditions DBQ in February 2016, the Veteran denied experiencing any left hip pain or claiming service connection for a left hip disability. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Range of motion testing of the left hip was normal. On VA back (thoracolumbar spine) conditions DBQ in February 2016, no relevant complaints were noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed no radiculopathy. In a March 2016 opinion, a VA clinician opined that there was no left hip pathology, no left hip sclerosis, and no left hip osteoarthritis based on a review of the February 2016 VA examination and x-rays. This clinician also noted that the Veteran’s left hip had full strength, no pain, no decreased motion,” and no signs or symptoms of any pathology at that examination. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a left hip disability or radiculopathy of the bilateral lower extremities at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s lay assertions – that he experienced either a left hip disability or radiculopathy of the bilateral lower extremities at any time during or after active service which is attributable to active service. The record evidence clearly shows that the Veteran had no left hip disability or radiculopathy in either of his lower extremities when examined for VA adjudication purposes in May 2014 and in February 2016. A VA clinician also provided an opinion that there was no left hip pathology seen on VA examination in February 2016. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a left hip disability or for radiculopathy of the bilateral lower extremities. In summary, the Board finds that service connection for a left hip disability and for radiculopathy of the bilateral lower extremities, including as due to service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee, is not warranted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for a right cicatrix bone graft from the right ilium with osteoarthritis of the right hip and to a disability rating greater than 10 percent for residuals of a right tibia and fibula fracture with arthritic changes of the right knee is remanded. The Veteran essentially contends that his service-connected right cicatrix bone graft from the right ilium with osteoarthritis of the right hip and service-connected residuals of a right tibia and fibula fracture with arthritic changes of the right knee (“service-connected right hip disabilities”) are both more disabling than currently evaluated. The Board acknowledges that the Veteran’s service-connected right hip disabilities were examined most recently for VA adjudication purposes in February 2016. Following the Veteran’s February 2016 VA hip and thigh conditions DBQ, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the right hip, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran’s February 2016 VA hip and thigh conditions DBQ did not comply with Correia. For example, there is no indication in this examination whether the right hip range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected right cicatrix bone graft from the right ilium with osteoarthritis of the right hip and service-connected residuals of a right tibia and fibula with arthritic changes of the right knee. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). 2. Entitlement to an initial rating greater than 10 percent for degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine is remanded. The Veteran also contends that his service-connected degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine is more disabling than currently (and initially) evaluated. The Board acknowledges that this disability was examined most recently for VA adjudication purposes in February 2016. Following the Veteran’s February 2016 VA back (thoracolumbar spine) conditions DBQ, as noted above, the Court issued its decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia, 28 Vet. App. at 158. A review of the February 2016 VA back (thoracolumbar spine) conditions DBQ shows that it did not comply with Correia. For example, there is no indication in this examination report whether the lumbosacral spine range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine. The matters are REMANDED for the following action: 1. Schedule the Veteran for updated VA examinations to determine the current nature and severity of his service-connected right cicatrix bone graft from the right ilium with osteoarthritis of the right hip and service-connected residuals of a right tibia and fibula with arthritic changes of the right knee. 2. Schedule the Veteran for an updated VA examination to determine the current nature and severity of his service-connected degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel