Citation Nr: 18152301 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-27 222 DATE: November 21, 2018 ORDER The requests to reopen the finally disallowed claims of entitlement to service connection for bilateral knee condition are denied. REMANDED Entitlement to service connection for lumbar spine disorder, to include lumbar disc disease and lumbar spondylosis, is remanded. FINDINGS OF FACT 1. In the February 2010 rating decision, the Regional Office (RO) denied service connection for bilateral knee condition; the Veteran did not perfect a timely appeal of the decision and the decision became final. 2. The additional evidence received since the February 2010 rating decision does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claims of service connection for bilateral knee condition. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying service connection for bilateral knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. The criteria for reopening the finally disallowed claims of entitlement to service connection for bilateral knee condition are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1989 to July 1995. This appeal to the Board of Veteran’s Appeals (Board) arose from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. The Veteran requested a local hearing regarding the matters, which was held in February 2016. See November 2013 Notice of Disagreement (NOD); February 2016 Informal Conference Report April 2016 Statement of the Case (SOC); May 2016 Substantive Appeal (VA Form 9). New and Material Evidence Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. §3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final disallowance of a claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vt. App. 216 (1995). VA must review the evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251 (1999). 1. Whether new and material evidence has been received to reopen the finally disallowed claims of entitlement to service connection for bilateral knee condition. The Veteran’s claim of entitlement to service connection for bilateral knee condition was originally denied by a February 1996 rating decision, on the basis that the evidence did not support a current diagnosis of a disability. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of that decision; thus, the decision became final. A May 2008 rating decision denied reopening the claim for service connection for a left knee condition based on the absence of new and material evidence. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of that decision; thus, the decision became final. In the February 2010 rating decision, the RO denied reopening service connection for both knee conditions based on the absence of new and material evidence, specifically that there was no evidence showing that the Veteran was diagnosed with the condition within one year of separation of service or received continuous treatment after his separation from service. The RO notified the Veteran of the decision and of his appellate rights in letter dated February 2010. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of that of the February 2010 rating decision. Thus, the February 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In October 2012, the Veteran filed a request to reopen the finally disallowed claims for service connection for left and right knee conditions. In a September 2013 rating decision, the RO reopened the claim for left knee condition but denied entitlement to service connection. Regarding the right knee, the RO denied the request to reopen based on the absence of new and material evidence. Notwithstanding the RO’s actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claims of service connection for left and right knee conditions. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The pertinent evidence that was considered at the time of the February 2010 rating decision was the service treatment records from January 1989 to May 1995; November 1995 VA examination; and VA treatment records from January 2007 to March 2008. The service treatment records show multiple complaints regarding the Veteran’s knee pain in September 1989, November 1991, and April 1992. An assessment was conducted, and a possible pulled cruciate ligament was noted. A physical examination of the Veteran’s knees showed that they were in normal condition. The November 1995 VA examination showed that the x-rays of the Veteran’s knees were normal. A diagnosis of early traumatic arthritis was given for the right knee. The VA treatment records from January 2007 to March 2008 document more of the Veteran’s complaints and treatment for his knee pain. Again, the RO denied reopening the claim in February 2010, reasoning that new and material evidence was not submitted to support a chronic condition during service or continuous treatment after separation from service. Accordingly, the Board finds that new and material evidence would consist of evidence that relates to a nexus between the Veteran’s current condition and his military service. The pertinent evidence submitted since the February 2010 rating decision was the Veteran’s lay statement from 2013; an August 2013 VA examination, private medical records from April 2013 to June 2013; VA treatment records received May 2018; and the Veteran Representative’s statement from September 2018. In the Veteran’s lay statement, the Veteran contends that because of his service-connected right ankle injury, he has overcompensated and hurt his left knee. The Veteran is claiming a new theory of entitlement for his left knee condition, secondary service connection. The Veteran also notes his early traumatic arthritis diagnosis in his right knee in the November 1995 VA examination The private medical records from April 2013 to June 2013 show the Veteran’s complaints regarding knee pain. This evidence is cumulative and redundant of the evidence submitted at the time of the February 2010 rating decision; thus, the evidence is not new. In the August 2013 VA examination, the examiner notes that the Veteran has a left knee condition, although x-rays showed the knee to be in normal condition. The Veteran noted that he suffers for pains and aches. The examination also indicates that imaging studies and diagnostic testing were conducted on his knees; and the diagnosis of degenerative or traumatic arthritis was documented for the left knee. It is also noted that the right knee has minor age typical degenerative joint disease. The VA examiner opined that the Veteran’s left knee condition is less likely than not due to or the result of the Veteran’s service connected condition, explaining that orthopedic literature disputes that an injured lower limb with adequate motion and normal gait produces an overload, and therefore injury to the opposite normal limb. The Veteran representative’s statement asserts that the Veteran’s knee conditions are secondary to his service-connected disabilities affecting his cervical spine, bilateral foot, and right ankle. This evidence is considered new because it was not considered at the time of the February 2010 rating decision. However, the evidence is not material because it does not establish a nexus between the Veteran’s current condition and his service. In fact, the evidence negates a nexus. Therefore, it does not raise a reasonable possibility of substantiating the claim. The Veteran and his representative’s assertions that his knee conditions are secondary to his service-connected abilities is the only evidence of record regarding this theory of entitlement. A new ethological theory does not constitute a new claim. See Velez v. Shinseki, 23 Vet. App. 199 (2009). However, if the evidence supporting a new theory of entitlement constitutes new and material evidence, then the VA must reopen the claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Board finds the assertions are beyond the competence of the Veteran and his representative, since they do not demonstrate the expertise required to make such an assertion. See Justus, 3 Vet. App. at 513. Since the assertions lack competence, the credibility of their assertions may not be presumed. Id. Thus, the Board finds that the assertions are not material and are insufficient to support a reopening the claims. In conclusion, while some of the evidence submitted since the February 2010 rating decision was new, it is not material as it does not raise a reasonable possibility of substantiating a claim for service connection for bilateral knee conditions. Since new and material evidence has not been received, the previously denied claims of entitlement for service connection for bilateral knee conditions are not reopened. The benefit sought is denied. The benefit of the doubt doctrine is not applicable in this case since the Veteran has not met the threshold burden of submitting new and material evidence necessary to reopen a claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND 1. Entitlement to service connection for lumbar disc disease; lumbar spondylosis, to include secondary to right ankle injury After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to service connection for lumbar disc disease; lumbar spondylosis, to include secondary to right ankle injury. In 2013, the Veteran contends that while in-service, he engaged in numerous road marches, indicating that since he was the lowest ranking member in the mortar squad, he had the heaviest part of the mortar. He claims he carried ruck sacks that weighed 70-80 pounds, in addition to the 20-pound base plate. In his November 2013 NOD, the Veteran states that while in service, he was involved in two car accidents, in June 1993 and July 1994. The Veteran also contends that his current back condition is secondary to his service-connected right ankle injury. In the most VA examination conducted in March 2016, the examiner opined that the Veteran’s back condition was not at least as likely as not proximately due to or the result of the service connected right ankle injury. The examiner reasoned that the cause of the Veteran’s back injury was from his work at the post office. However, the examiner did not give an opinion regarding if the Veteran’s back condition was aggravated beyond its natural progression by his service connected condition. Therefore, a remand to obtain an opinion concerning aggravation is necessary. The matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his back disability. The RO/AMC should secure any necessary authorizations. 2. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran’s back disability. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Is it at least as likely as not (a 50 percent or greater probability) that his back disability is due to or the result of the service-connected right ankle? (b) Is it at least as likely as not (a 50 percent or greater probability) that his back disability is aggravated (i.e., worsened beyond the natural progress) by a service-connected right ankle injury? If a back disability shown is deemed not to be due to, or aggravated by a service-connected right ankle injury, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel