Citation Nr: 18159259 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 12-20 532 DATE: December 18, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for chronic lumbar strain is reopened. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for chronic lumbar strain is remanded. FINDINGS OF FACT 1. In a March 1993 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of entitlement to service connection for chronic lumbar strain; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the March 1993 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for chronic lumbar strain, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1993 decision denying the claim of entitlement to service connection for chronic lumbar strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the March 1993 decision to reopen the claim of entitlement to service connection for chronic lumbar strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2017, at which time it declined to reopen the claim of entitlement to service connection for chronic lumbar strain, and reopened and denied the claim of entitlement to service connection for a left knee disorder. The Veteran appealed the June 2017 denial to the United States Court of Appeals for Veterans Claims (Court). In January 2018, the Court issued an order granting a Joint Motion for Partial Remand (JMPR), and vacated the June 2017 decision to the extent it declined to reopen the back claim and denied service connection for the left knee. New and Material Evidence Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic lumbar strain. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for chronic lumbar strain. In March 1993, the AOJ denied the claim of entitlement to service connection for chronic lumbar strain based on the lack of a nexus between a current disorder and the Veteran’s period of service, to include as secondary to the service-connected right knee disability. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 1993 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 1993 decision. In January 2012, VA received a letter from the Veteran, in which he states that several doctors have advised him that his back pain is proximately due to an altered gait resulting from his service-connected right knee disability. 01/17/2012, Congressionals. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether chronic lumbar strain had its onset in or is otherwise related to active service, to include as secondary to the right knee. Therefore, the claim of entitlement to service connection for chronic lumbar strain is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).   REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for chronic lumbar strain is remanded. In August 2018, a VA specialist provided an opinion with respect to the Veteran’s claims of service connection for the back and left knee. In response, the Veteran submitted additional evidence and indicated that he does not waive AOJ consideration of the new evidence and requested that the case be remanded for such a purpose. Additionally, upon further review, the Board finds that a new VA examination is warranted to address the Veteran’s contention that he has an altered gait due to his service-connected right knee disability. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 2. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine whether his service-connected right knee disability results in an altered/antalgic gait. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected right knee disability results in altered/antalgic gait. (b.) If the clinician determines that the Veteran has an altered/antalgic gait due to the right knee disability, is at least as likely as not (50 percent or greater probability) that chronic lumbar strain was caused by the service-connected right knee disability, to include due to an altered/antalgic gait? (c.) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that chronic lumbar strain has been aggravated (i.e., worsened beyond the normal progression of that disease) by the service-connected right knee disability, to include due to an altered/antalgic gait? (d.) If the clinician determines that the Veteran has an altered/antalgic gait due to the right knee disability, is at least as likely as not (50 percent or greater probability) that a current left knee disorder was caused by the service-connected right knee disability, to include due to an altered/antalgic gait? (e.) If the answer to (d) is no, is it at least as likely as not (50 percent or greater probability) that a current left knee disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by the service-connected right knee disability, to include due to an altered/antalgic gait? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel