Citation Nr: 18156511 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-12 656 DATE: December 10, 2018 ORDER The request to reopen a claim for service connection for a left knee condition, to include residuals of a total left knee arthroplasty, is granted. Service connection for a left knee condition, to include residuals of a total left knee arthroplasty, to include as secondary to service-connected total right knee arthroplasty, is granted. The request to reopen a claim for service connection for a low back condition is granted. Service connection for a low back condition, as secondary to service-connected total right knee arthroplasty, is granted. The request to reopen a claim for service connection for a left hip disability is granted. The request to reopen a claim for service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. FINDINGS OF FACT 1. An unappealed January 2011 rating decision denied service connection for residuals of a left knee arthroplasty. Evidence received since the January 2011 denial, including the May 2018 private medical opinion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 2. The Veteran has a current left knee condition; the Veteran is service-connected for a total right knee arthroplasty; a May 2018 private medical opinion that relates the left knee condition to the right knee condition is assigned significant probative weight because it addresses all the evidence of record and is supported by a well-reasoned explanation. [The Board acknowledges two negative VA opinions but cannot assign them significant probative weight because they do not address all the Veteran’s facially plausible contentions.] Thus, the evidence is at least in relative equipoise as to whether the criteria are met for service connection for a left knee condition. 3. An unappealed July 2006 rating decision denied service connection for low back condition. Evidence received since the July 2006 denial, including the May 2018 private medical opinion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 4. The Veteran has a current low back condition; the Veteran is service-connected for a total right knee arthroplasty; a May 2018 private medical opinion that relates the low back condition to the right knee condition is assigned significant probative weight because it addresses all the evidence of record and is supported by a well-reasoned explanation. The Board acknowledges the negative VA opinion but cannot assign it significant probative weight because it does not address all the Veteran’s facially plausible contentions.] Thus, the evidence is at least in relative equipoise as to whether the criteria are met for service connection for a low back condition. 5. An unappealed July 2006 rating decision denied service connection for a left hip disability. Evidence received since the July 2006 denial, including the May 2018 private medical opinion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 6. An unappealed October 2008 rating decision denied service connection for a right hip disability. Evidence received since the October 2008 denial, including the May 2018 private medical opinion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. New and material evidence has been received; the appeal for service connection for a total left knee arthroplasty may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a left knee condition to include residuals of a left knee arthroplasty, to include as secondary to the total right knee arthroplasty have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. New and material evidence has been received; the appeal for service connection for a low back condition may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a low back condition, to include as secondary to the service-connected total right knee arthroplasty have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. New and material evidence has been received; the appeal for service connection for a left hip condition may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received; the appeal for service connection for a right hip condition may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1972 to April 1992. These matters are before the Board of Veterans’ Appeals on appeal from a July 2013 decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 7104. “New” evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (explaining that, for evidence to be “material,” it must at least trigger VA’s duty to assist by providing a medical opinion). 1. Reopening a claim for service connection for a left knee condition In a January 2011 rating decision, the RO denied the Veteran’s claim for service connection for a left knee arthroplasty because there was no evidence of a nexus or in-service injury. See 2011 rating decision. Evidence submitted prior to this decision consisted of a September 2010 VA treatment record, an August 2010 VA treatment record, and statements from the Veteran. See id. The Veteran did not appeal the January 2011 decision. However, new evidence was generated in the claims file. See 2011 VA examination; 2011 VA treatment records. Although VA medical records were generated within a year of the January 2011 denial, these records are not material because, even reviewed with the rest of the evidence of record, they do not relate to an unestablished fact needed to substantiate the claim. The newly submitted evidence relates to the current disability element, but does not provide any supporting evidence as to nexus or the incurrence of an in-service event or injury. Therefore, the evidence submitted within the appeal period, although new, was not material. The January 2011 decision became final. In 2018, the Veteran submitted a private medical treatment record with a positive opinion as to nexus between his service-connected right knee condition and his left knee condition. See 2018 private treatment record. This private treatment record is new because it has not previously been submitted or considered. Further, the evidence is material because it directly relates to whether the Veteran’s left knee condition is related to his service-connected right knee condition. New and material evidence having been received, the claim for service connection for the left knee arthroplasty has been reopened. 2. Reopening a claim for service connection for a low back condition In a July 2006 rating decision, the RO denied the claim for service connection for a low back condition because there was no evidence of the claimed condition or relationship between the condition and military service. See 2006 rating decision. The July 2006 decision because final based on the evidence then of the record because the Veteran did not appeal or submit new evidence within one year of that decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. In 2011, VA generated treatment records indicating a diagnosis for low back strain, degenerative disc disease and degenerative changes in lumbar spine. See 2011 VA medical examination. Additionally, in 2018, the Veteran submitted a private medical record with a positive opinion as the relationship between his low back condition and his service-connected right knee condition. See 2018 private medical record. Both the 2011 VA treatment records and the 2018 private medical record are new because they have not previously been submitted or considered. Further, the evidence is material because it directly relates to whether the Veteran has a current low back condition and whether that condition is related to his service-connected right knee condition. New and material evidence having been received, the claim for service connection for a low back condition has been reopened. 3. Reopening a claim for service connection for a left hip disability In a July 2006 rating decision, the RO denied service connection for a left hip condition as secondary to a service-connected right knee disability, stating that the evidence did not show that any causal connection between the two conditions. See 2006 rating decision. The July 2006 decision became final based on the evidence then of the record because the Veteran did not appeal or submit new evidence within one year of that decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. In 2018, the Veteran submitted a private medical treatment record with a positive opinion as to a nexus between his service-connected right knee condition and his left hip. See 2018 private medical record. This private treatment record is new because it has not previously been submitted or considered. Further, the evidence is material because it directly relates to whether the Veteran’s left hip condition is related to his service-connected right knee condition. New and material evidence having been received, the claim for service connection for the left hip condition has been reopened. 4. Reopening a claim for service connection for a right hip disability In an October 2008 rating decision, the RO denied service connection for a right hip condition as secondary to a service-connected right knee disability. See 2008 rating decision. The RO apparently copied the explanation used for the July 2006 denial of service connection for the left hip condition (stating that the evidence did not show that any causal connection between the two conditions). The October 2008 decision became final based on the evidence then of the record because the Veteran did not appeal or submit new evidence within one year of that decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. In 2018, the Veteran submitted a private medical treatment record with a positive opinion as to nexus between his service-connected right knee condition his right hip. See 2018 private medical record. This private treatment record is new because it has not previously been submitted or considered. Further, the evidence is material because it directly relates to whether the Veteran’s right hip condition is related to his service-connected right knee condition. New and material evidence having been received, the claim for service connection for the right hip condition has been reopened. Service Connection Service connection for a disability may be granted when the evidence shows that a current disability results from an injury or disease that was incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a). The general requirements of service connection are (1) a current disability, (2) medical or lay evidence of an in-service incurrence or aggravation of a disease or injury, and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is what is generally called “direct service connection.” Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 5. Service connection for left knee condition The Veteran claims service connection for his left knee condition as secondary to his service-connected right knee condition. See NOD. The Veteran has received ongoing treatment throughout the appeal period for residuals of a total left knee arthroplasty. See 2018 private medical evaluation. There are no service records indicating any treatment or reports of symptoms for his left knee. However, the STRs document extensive right knee problems culminating in a right knee arthroplasty in August 2010 and the Veteran is currently service-connected for a total right knee arthroplasty, evaluated as 30 percent disabling. See STR ; see also 2018 rating decision; 2010 treatment record. The Veteran testified that he did begin having trouble with his left knee after surgery on his right knee, which occurred just before he got out of the service. See 2017 hearing transcript. He stated that, as a result of the right knee injuries, he became more dependent on his left knee, which then began to bother him. See id. There is a December 2005 VA medical opinion that states that the Veteran’s left knee condition is not caused by or as a result of his service-connected right knee. See 2005 VA medical examination. The examiner stated that there is minimal limp on the right knee, which indicates that it would not have caused the issue with the left knee. Furthermore, the examiner indicates that it is more likely than not that the Veteran’s weight has aggravated his left knee. A July 2006 VA medical opinion states the same rationale and conclusion. See 2006 VA medical examination. However, a May 2018 private medical evaluation from an orthopedic surgeon opines that the current left knee condition is more likely than not caused by the service-connected right knee as a result of gait disruption. See 2018 private medical evaluation. The orthopedist explained that the prior VA medical examination did not appropriately consider the nature and extent of the Veteran’s gait abnormality or its effect upon his left knee. The Board finds that the medical evidence of record provides a sufficient basis for an award of service connection for a left knee condition to include residuals of a total left knee arthroplasty on a secondary basis. In this regard, the two negative VA medical opinions dissociating the left knee condition from the Veteran’s service-connected right knee cannot be assigned significant probative weight. The December 2005 and July 2006 opinions focused primarily on weight as a contributing factor to aggravation, but did not consider how the Veteran’s knee conditions might have contributed to his weight gain in the first place. Conversely, the May 2018 private medical opinion is based on a full consideration of all evidence of record and an evaluation of the Veteran, and is well supported. Therefore, this evaluation is assigned significant probative weight. Accordingly, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's left knee condition is caused or aggravated by his service-connected right knee. Resolving all remaining doubt in the Veteran's favor, service connection for a left knee condition (to include residuals of a total left knee arthroplasty) is warranted as secondary to the service-connected right knee condition. 6. Service connection for a low back condition The Veteran claims service connection for a low back condition. See NOD. The Veteran has received ongoing treatment throughout the appeal period for a low back condition. See 2018 private medical evaluation; see also 2017 private medical record. There are no service records indicating any treatment or reports of symptoms for his low back condition during service. The Veteran testified that he began having trouble with his low back after being placed on crutches due to an injury to his right knee that occurred in service. See 2017 hearing transcript. An August 2011 VA examination opined that the low back condition is less likely than not (less than 50 percent probability) due to or a result of the Veteran’s service-connected right knee condition. See 2011 VA medical examination. The examiner stated that the right knee condition was not associated with repetitive load or heavy lifting, which would be expected to increase lumbar spine disease. Additionally, the examiner stated that it was more likely that the low back condition was due to the Veteran’s weight. The Veteran submitted a May 2018 private medical evaluation from an orthopedic surgeon that relates the current low back condition to the Veteran’s service-connected right knee disability as the result of gait disruption. See 2018 private medical evaluation. The orthopedist noted that the prior VA medical examination did not appropriately consider the nature and extent of the Veteran’s gait abnormality or its effect upon his low back. Additionally, there is a statement from a private chiropractor acknowledging the Veteran’s severe low back pain due to weight bearing and gait compensation. The Veteran was a patient of this chiropractor for approximately six years. See id. The Board finds that the medical evidence of record provides a sufficient basis for an award of service connection for a low back condition on a secondary basis. In this regard, the negative VA opinion dissociating the low back condition from the Veteran’s service-connected right knee cannot be assigned significant probative weight. The examiner failed to distinguish between the analysis for aggravation and causation for the secondary claim. Additionally, the 2011 opinion stated that the Veteran’s weight was a likely contributor to the low back condition, but did not consider whether or how the Veteran’s knee conditions might have contributed to his weight gain. Conversely, the May 2018 private medical opinion is based on a full consideration of all evidence of record and an evaluation of the Veteran, and is well supported. Furthermore, the private chiropractor, who saw the Veteran throughout the years, supported the May 2018 opinion that gait compensation affected the Veteran’s low back. Accordingly, the May 2018 medical opinion is assigned significant probative weight. The Board finds the evidence is at least in relative equipoise as to whether the Veteran's low back condition was caused by his service-connected right knee condition. Resolving all remaining doubt in the Veteran's favor, service connection for a low back condition is warranted as secondary to the service-connected right knee condition. REASONS FOR REMAND VA is required to provide an examination when there is insufficient medical evidence to decide the claim but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). The Veteran states he has hip pain and the May 2018 private medical evaluation indicates that he underwent a hip arthroplasty. See 2018 private medical record. The Veteran has stated that he began to have hip trouble in service after his right knee was injured and he had to use crutches. See 2017 hearing transcript. The Veteran and the private medical opinion state that his hip condition is due to his right knee condition, which began in service. The Veteran has met the elements of McClendon, yet has not been provided a medical examination or a medical opinion regarding the cause of the hip condition. Therefore, an examination and opinion is required to determine if his right and left hip conditions are related to service. Further, the Veteran’s private medical evaluation indicates that he underwent a total hip arthroplasty. See 2018 private medical record. However, the VA medical treatment records do not mention anything about a hip arthroplasty or a hip condition. See generally VA medical records. Without proper clarification on whether the Veteran has had a hip arthroplasty or if a hip condition exists, the Board cannot adjudicate the claim. If a reasonable possibility exists that the records are relevant to the Veteran’s claim, VA is required to assist the Veteran in obtaining the identified records. Golz v. Shinseki, 590 F. 3d 1317, 1323 (2010). Therefore, remand is necessary to obtain additional medical treatment records and information from the Veteran to support this claim. The matters are REMANDED for the following action: 1. Contact the Veteran and inform him that there is no diagnosis on his left and right hip and the Board cannot adjudicate his claim without clarification of whether he has a current disability. Ask the Veteran if he would like to provide an addendum opinion about his left and right hip from his private physician OR if the Veteran would prefer that a VA examination be provided. If the Veteran would like to provide clarification on his hip condition from his private physician, request that he obtain a letter responding to the questions set forth below. [Specifically, the May 2018 medical opinion stated that the Veteran’s “total hip arthroplasties have been complicated by functional impairment that is repeatedly observed as gait pattern change.” The private physician must clarify whether the Veteran has undergone total hip arthroplasties or whether the statement was referring to the total knee arthroplasties.] The private physician is asked to answer the following questions: a) Whether the Veteran has a current diagnosis for his LEFT hip? b) Whether the Veteran has a current diagnosis for his RIGHT hip? c) Is it at least as likely as not (50 percent or greater likelihood) that any LEFT hip condition had its onset in service or is otherwise related to service? d) Is it at least as likely as not (50 percent or greater likelihood) that any RIGHT hip condition had its onset in service or is otherwise related to service? e) Is it at least as likely as not (a 50 percent or better probability) that the LEFT hip condition was caused by the Veteran’s service-connected right knee condition? f) Is it at least as likely as not (a 50 percent or better probability) that the RIGHT hip condition was caused by the Veteran’s service-connected right knee condition? g) Is it at least as likely as not (a 50 percent or better probability) that the LEFT hip condition was aggravated by the Veteran’s service-connected right knee condition? (Aggravation means the disability increased in severity beyond its natural progression.) h) Is it at least as likely as not (a 50 percent or better probability) that the RIGHT hip condition was aggravated by the Veteran’s service-connected right knee condition? (Aggravation means the disability increased in severity beyond its natural progression.) A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 2. If the Veteran does not respond to the inquiry about his left and right hip conditions in a reasonable time or if the Veteran would like a VA examination, schedule him for a VA examination with qualified examiner for the left and right hip conditions to determine if the Veteran has a left and right hip condition and the nature, extent and likely cause of the claimed conditions. The VA examiner’s attention is drawn to the following: (a.) The Veteran’s testimony on November 2, 2017 indicating that he began to have problems with his hips after injuring his right knee. (b.) The May 2018 private medical record by Dr. F.G. indicating that the hip condition is related to the right knee condition due to the Veteran’s altered gait. The examiner is asked to answer the following questions: a) Whether the Veteran has a current diagnosis for his LEFT hip? b) Whether the Veteran has a current diagnosis for his RIGHT hip? c) Is it at least as likely as not (50 percent or greater likelihood) that the LEFT hip condition had its onset in service or is otherwise related to service? d) Is it as least as likely as not (50 percent or greater likelihood) that the RIGHT hip condition has its onset in service or is otherwise related to service? e) Is it at least as likely as not (a 50 percent or better probability) that the LEFT hip condition was caused by the Veteran’s service-connected right knee condition? f) Is it at least as likely as not (a 50 percent or better probability) that the RIGHT hip condition was caused by the Veteran’s service-connected right knee condition? g) Is it at least as likely as not (a 50 percent or better probability) that the LEFT hip condition was aggravated by the Veteran’s service-connected right knee condition? (Aggravation means the disability increased in severity beyond its natural progression.) h) Is it at least as likely as not (a 50 percent or better probability) that the RIGHT hip condition was aggravated by the Veteran’s service-connected right knee condition? (Aggravation means the disability increased in severity beyond its natural progression.) A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Bryant, Law Clerk