Citation Nr: 18155937 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-35 749 DATE: December 6, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a left ankle disability is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right ankle disability is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a left knee disability is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for headaches of unknown etiology and general weakness is granted. REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected back condition, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected back condition, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected back condition, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected back condition, is remanded. Entitlement to service connection for headaches of unknown etiology and general weakness, to include as due to contaminated water from Camp Lejeune and/or as secondary to service-connected sinusitis, is remanded. FINDINGS OF FACT 1. An unappealed July 2003 rating decision denied service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness; a subsequent rating decision in July 2011 (that is also final) continued the denial. 2. Evidence received since the July 2011 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness. CONCLUSIONS OF LAW 1. The July 2011 rating decision that continued the denials of entitlement to service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknow etiology and general weakness is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received and the claims of entitlement to service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness are reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received to reopen the claims of entitlement to service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness. Generally, a claim which has been denied in an unappealed Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claims of entitlement to service connection for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness were denied by a July 2003 rating decision based on a lack of evidence which connected any in-service injury or illness with a current disability. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; therefore, it is final. A July 2011 rating decision continued the denial of service connection for a bilateral ankle disability, a bilateral knee disability, and headaches of unknown etiology and general weakness, finding that no new and material evidence had been submitted to reopen the claims. The Veteran did not appeal the July 2011 rating decision nor was new and material evidence received within one year of that decision; therefore, it too is final. Since the prior denial of the Veteran’s claims in July 2011, evidentiary submissions have included VA Examinations of the Veteran’s bilateral ankle and knee disabilities as well as his headache and general weakness disability dated May 2016, Tennessee VA Medical Center Records dated October 2013 through April 2018, a private medical opinion dated July 2018, and the Veteran’s written lay statements received September 2013 and July 2016. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence sufficient to reopen service connection claims for a bilateral ankle disability, a bilateral knee disability and headaches of unknown etiology and general weakness has been received. The new evidence received contains additional medical documentation with additional symptomatology. Further, a private medical opinion suggested a relationship between the Veteran’s service-connected low back arthritis and the claims for service connection of a bilateral ankle and bilateral knee disability. Finally, in various statements from the Veteran, he has contended that his headaches are related to his service in Camp Lejeune or his service-connected sinusitis, which he states makes his headaches worse. This evidence is also material because it relates to an unestablished fact that is necessary to substantiate the claim. Specifically, it may establish a possible nexus between the Veteran’s disability claims on appeal with his active duty service, which was the basis of the prior final denial. Accordingly, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claims for entitlement to service connection a bilateral ankle disability, bilateral knee disability and headaches of unknown etiology and general weakness. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral ankle disability and a bilateral knee disability, to include as secondary to service-connected back disability, is remanded. The Veteran seeks service connection for a bilateral ankle disability and a bilateral knee disability. He contends that he twisted and injured both ankles during active duty. He also asserts that he injured his left knee and then sustained injury to his right knee because he was over-compensating for his left knee. Finally, he submitted private medical opinions indicating that his bilateral ankle disability and bilateral knee disability were aggravated by his service-connected back disability. The Board notes that the Veteran was most recently afforded VA examinations for his bilateral ankle and knee disabilities in May 2016. However, the issue of secondary service-connection was not addressed. Further the Board note that issue of whether the Veteran had a knee condition pre-existing service is raised by the record. Accordingly, the Board finds that additional development to specifically include new VA examinations to assess the nature and etiology of the Veteran’s bilateral ankle and bilateral knee disabilities is warranted. 2. Entitlement to service connection for headaches of unknown etiology and general weakness to include as due to contaminated water from Camp Lejeune and secondary to service-connected sinusitis is remanded. The Veteran contends that his headaches and general weakness are secondary to his service-connected sinusitis. Further he asserts that his headaches and general weakness are directly related to his exposure to contaminated water while serving on active duty at Camp Lejeune. The Veteran was afforded a VA examination in May 2016 and diagnosed with cluster headaches. However, theories of entitlement to service connection based on direct exposure to contaminated water at Camp Lejeune and secondary aggravation associated with service-connected sinusitis were not addressed. Accordingly, remand for a new VA examination is warranted. The matters are REMANDED for the following actions: 1. Contact the Veteran and ask that he identify the provider(s) of any additional treatment or evaluation he has received since separation for his bilateral ankle disability, bilateral knee disability, and headaches and general weakness, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. 2. After all available records have been associated with the file, schedule the Veteran for new VA examinations for his bilateral ankle disability, bilateral knee disability and headaches and general weakness condition. The Veteran’s claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on the examination results and a review of the pertinent medical history, the examiner should provide opinions responding to the following: (a.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral ankle disability is etiologically related to his active service? In responding to this question, the examiner should consider the March 1973 in-service incident when he was struck with a brick on his left ankle well as all in-service treatment for ankle pain. (b.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral ankle disability is caused by his service-connected lumbar spine disability? (c.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral ankle disability is aggravated (worsened beyond its natural progression) by his service-connected lumbar spine disability? (d.) Does the evidence of record clearly and unmistakably (without question) demonstrate that the Veteran had a bilateral knee disorder, a right knee disorder or a left knee disorder, prior to his active duty service? (e.) If the answer to question (d) is “yes,” does the evidence clearly and unmistakably (without question) demonstrate that the Veteran’s bilateral knee disorder, right knee disorder or left knee disorder, was NOT aggravated (worsened beyond its natural progression) by his active duty service? (f.) If the answer to question (e.) is no, is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral knee disability is etiologically related to his active service? (g.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral knee disability is caused by his service-connected lumbar spine disability? (h.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current bilateral knee disability was aggravated (worsened beyond its natural progression) by his service-connected lumbar spine disability? (i.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current headache and general weakness condition is etiologically related to his active service, to include his exposure to contaminated water while serving at Camp Lejeune? (j.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current headache and general weakness condition is caused by his service-connected sinusitis? (k.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current headache and general weakness condition was aggravated (worsened beyond its natural progression) by his service-connected lumbar sinusitis? The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel