Citation Nr: 18155172 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-00 652 DATE: December 4, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right knee disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a left knee disorder is granted. Service connection for a right knee disorder is granted. REMANDED Entitlement to a rating in excess of 20 percent for neck disc problem. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI). Entitlement to a compensable rating for post-traumatic headaches. Entitlement to a compensable rating for bilateral hearing loss. Entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for a left knee disorder. Entitlement to service connection for a left elbow disorder. FINDINGS OF FACT 1. The Veteran served on active duty from June 1971 to April 1973 and from February 1974 to April 1992. 2. In an unappealed May 1993 rating decision, the claims of entitlement to service connection for left and right knee disorders were denied. 3. The evidence received since the May 1993 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claims for service connection for left and right knee disorders. 4. A right knee disorder is causally or etiologically related to service. CONCLUSIONS OF LAW 1. Subsequent to the final May 1993 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. Subsequent to the final May 1993 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 3. A right knee disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Claims of entitlement to service connection for left and right knee disorders were denied in a May 1993 rating decision. The left knee claim was denied on the basis that a diagnosed disability was not shown in service treatment records or at VA examination. The VA examination of the right knee revealed a small anterior scar, but no other disability, and the claim was denied because no disorder of the right knee was shown in service treatment records. Since that time, additional treatment notes and lay evidence has been received. This evidence reflects that the Veteran has undergone total knee arthroplasty of both the left and right knees. Therefore, he now has a current diagnosis for each of these claims. Therefore, new and material evidence has been received that is sufficient to warrant reopening of the previously denied claims for service connection for a left knee disorder and a right knee disorder, and to that extent the claims are granted. Service Connection for Right Knee Disorder Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran contends that he has a disability of the right knee as a result of military service, specifically a motor vehicle accident (MVA) that occurred in September 1977. Post-service medical evidence reveals a diagnosis of right knee osteoarthritis followed by a right knee replacement. However, service treatment records are silent for complaint, treatment, or diagnosis related to the left elbow, left knee, and right knee. A June 2013 VA examiner found that the Veteran’s right knee replacement was not associated with an abrasion of the right knee sustained in the MVA. However, the examiner concluded that the right knee replacement was probably a result of strenuous physical activity in service. There are no contradictory opinions of record. Therefore, giving the Veteran the benefit of the doubt, a right knee disorder was the result of service and the appeal is granted. REASONS FOR REMAND The most recent VA examinations to assess the severity of the Veteran’s neck, TBI, headaches, and bilateral hearing loss were conducted in June 2013, over five years ago. Further, he has recently asserted that his service-connected disabilities had increased in severity. Therefore, the issues are remanded so that additional VA examinations may be scheduled. With regard to the left elbow and left knee disorders, a September 2015 VA examiner opined that neither disability was a result of service because no acute injury or chronic condition of the left elbow or left knee was found in service treatment records. However, the lack of a diagnosed disorder in service treatment records alone is not a sufficient rationale. Therefore, the Board remands these claims so that another opinion may be obtained. Moreover, a June 2013 mental health examiner determined that the Veteran did not meet the criteria for PTSD and indicated that the only diagnosed disorder was dementia. However, at the examination, the Veteran reported having quarterly psychiatric treatment and private treatment records reveal treatment for anxiety and PTSD. The VA examination report does not indicate that the examiner considered an acquired psychiatric disorder other than PTSD. Therefore, an opinion is needed regarding whether any of the Veteran’s diagnosed acquired psychiatric disorders is etiologically a result of service. The matters are REMANDED for the following actions: 1. Associate with the claims file any outstanding, relevant treatment notes. 2. Schedule the Veteran for an examination to assess the current severity of his service-connected neck disability. The claims folder must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. 3. Schedule the Veteran for an examination to assess the current severity of his service-connected TBI. The claims folder must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. 4. Schedule the Veteran for an examination to assess the current severity of his service-connected post-traumatic headaches. The claims folder must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. 5. Schedule the Veteran for an examination to determine the current severity of his service-connected bilateral hearing loss. The claims folder must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. 6. Schedule the Veteran for an examination to determine the existence and etiology of any acquired psychiatric disorder present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to each acquired psychiatric disorder present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to events noted in service records or described by the Veteran in written or oral statements. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran’s competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 7. Obtain opinions from an appropriate examiner regarding the etiology of the Veteran’s left elbow and left knee disorders. All pertinent evidence of record must be made available to and reviewed by the clinician, and any indicated tests and studies should be performed. Upon review of the record, the clinician is asked to offer a medical opinion as to the following: Is it at least as likely as not (i.e., whether there is a 50 percent or better probability) that a left elbow disorder originated during active service or is otherwise etiologically related to active service? Is it at least as likely as not (i.e., whether there is a 50 percent or better probability) that a left knee disorder originated during active service or is otherwise etiologically related to active service? For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran’s competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 8. Adjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel