Citation Nr: 18157615 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-08 212 DATE: December 13, 2018 ORDER The petition to reopen the claim of service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for numbness of the left great toe is remanded. Entitlement to service connection for a female reproductive system condition, to include chronic pelvic pain and a condition of the endometrium, is remanded. Entitlement to a compensable disability rating prior to May 7, 2013, and to a disability rating in excess of 10 percent from that date for shin splints of the left leg is remanded. Entitlement to a compensable disability rating prior to May 7, 2013, and to a disability rating in excess of 10 percent from that date for shin splints of the right is remanded. FINDING OF FACT Service connection for a bilateral knee disability was previously denied in an unappealed February 2004 rating decision; evidence that was not previously before decision makers at that time and that raises a reasonable possibility of substantiating the claim has subsequently been received. CONCLUSION OF LAW The criteria to reopen the claim of service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1994 to August 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued in August 2012, June 2014, and July 2014. The June 2014 rating decision treats the August 2012 rating decision as having become final with respect to the denials of service connection for a condition of left great toe and the female reproductive system. However, the Veteran responded to the denial of service connection for these conditions within one year of the August 2012 decision, in May 2013 and July 2013 respectively. Consequently, these denials never became final. New and material evidence as to these claims is not required. 1. Whether new and material evidence has been received to reopen the claim of service connection for a bilateral knee disability. Previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran’s claim for entitlement to service connection for a bilateral knee disability was previously denied in a February 2004 rating decision. The Veteran neither submitted new and material evidence nor a notice of disagreement (NOD) within a year of that decision; therefore, the February 2004 rating decision is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. New and material evidence regarding the Veteran’s bilateral knee conditions has been received since the February 2004 decision. Most saliently, the Veteran underwent a VA examination in July 2014 that documented that the Veteran did not have full range of motion in either knee, indicating objective findings of a disability of those joints. Since the previous denial was made for lack of observable pathology or decreased range of motion, this constitutes evidence that presents a reasonable possibility of substantiating the claim. Consequently, it is appropriate to reopen the claim for service connection for a bilateral knee disability. To this extent only, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral knee disability because no VA examiner has opined whether the Veteran’s decreased range of motion in her bilateral knees was caused by or the result of the many knee conditions documented throughout her service treatment records. 2. Entitlement to service connection for numbness of the left great toe is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left great toe condition because the March 2012 VA examiner’s rationale is not adequately explained. The March 2012 VA examiner indicates that the Veteran has a diagnosis of a left ankle sprain and tarsal tunnel syndrome with secondary foot weakness and numbness. However, the only left ankle sprain indicated in the examination report appears in the next section where the Veteran provides a history of having sprained her left ankle in service. The examiner then simply states that the current diagnosis is not related to the Veteran’s service or a separate injury that occurred in August 2010. As the examiner provided no explanation for the rationale of that opinion, an addendum opinion is required. 3. Entitlement to service connection for a female reproductive condition, to include chronic pelvic pain and or a condition of the endometrium, is remanded. The Veteran declined a VA examination with regard to this condition. However, the Veteran’s long history of pelvic, genital, and reproductive system conditions and treatments both during and after service is well documented in the record. These records even include a peri-pelvic cyst in August 1996 and a follicular cyst on one of the Veteran’s ovaries documented in July 2010. It is unclear from the record whether these, or any of the Veteran’s other conditions, are the cause of the Veteran’s recurrent pelvic pain or if the conditions documented in the Veteran’s post-service treatment records are related to those documented during her service. An opinion from an appropriate clinician should be obtained, if it is possible to render such an opinion, even though the Veteran declined a physical examination. 4. Entitlement to increased ratings for shin splints of the right and left legs is remanded. While the record contains a contemporaneous VA examination from July 2014 regarding the Veteran’s shin splints, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner stated that an opinion could not be provided without resort to speculation, but did not indicate that the speculation was due to lack of knowledge within the medical community. Additionally, the VA examination of the Veteran’s knees is likely to provide information that may be relevant to an evaluation of the Veteran’s shin splints. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine: (a.) The nature and etiology of any bilateral knee, or left great toe condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the many knee conditions and left great toe numbness in the Veteran’s service treatment records. (b.) The clinician’s examination should also include an examination of the current severity of the Veteran’s shin splints in both legs. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the shin splint conditions of his left and right legs alone and discuss the effect of the Veteran’s shin splints on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s conditions of the female reproductive system, to include conditions of the endometrium, an ovarian cyst, or chronic pelvic pain, are at least as likely as not related to the many conditions and instances of treatment for similar conditions documented in the Veteran’s service treatment records. If it is not possible to render the requested opinion without an additional examination, the clinician should so state. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel