Citation Nr: 1807165 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-09 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability, to include degenerative joint disease of the right knee, claimed meniscus repair and anterior cruciate ligament repair, and if so, whether service connection may be granted. 2. Entitlement to service connection for reactive chronic anxiety and depression as secondary to a right knee disability, to include degenerative joint disease. REPRESENTATION Appellant represented by: Margaret C. Felts, Esq. ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board has recharacterized the Veteran's claim of entitlement to service connection for right knee medial meniscus repair and anterior cruciate ligament repair as entitlement to service connection for a right knee disability, to include degenerative joint disease. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The issues of entitlement to service connection for a right knee disability and entitlement to service connection for reactive chronic anxiety and depression secondary to a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant and his representative if further action is required on his part. FINDINGS OF FACT 1. In October 1988, the RO denied the Veteran's claim of entitlement to service connection for a right knee disability, to include degenerative joint disease, claimed as right knee meniscus repair and anterior cruciate ligament repair. The Veteran did not appeal this decision and it became final. 2. Evidence added to the record since the October 1988 rating decision relates to unestablished facts necessary to the Veteran's claim for service connection for a right knee disability, to include degenerative joint disease. CONCLUSIONS OF LAW 1. The October 1988 rating decision, which denied the Veteran's claim of entitlement to service connection for right knee meniscus repair and anterior cruciate ligament repair, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for a right knee disability, to include degenerative joint disease, have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's claim for service connection for a right knee disability, to include degenerative joint disease (hereinafter "right knee disability") was initially denied by the RO in an October 1988. The Veteran did not appeal the decision on this issue, nor did he submit any relevant evidence within one year of the decision; therefore it is final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the October 1988 rating decision consisted of the Veteran's service treatment records and a VA examination. The claim was denied because there was no evidence of limitation of motion on the report of the Veteran's separation physical examination and because the "evidence did not show such advancement in basic pathology as to warrant service connection by aggravation." 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). The evidence added to the record since the October 1988 rating decision, consists of outpatient treatment records, lay statements, VA examinations, and private medical records. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material as it relates to unestablished facts necessary to substantiate the claim. Specifically, the RO determined that the January 2010 VA examination constituted both new and material evidence. Accordingly, the claim for service connection for a right knee disability reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The appeal is granted to that extent only. ORDER New and material evidence having been received; the claim of entitlement to service connection for a right knee disability is reopened. REMAND Although the Board regrets the delay, it finds that a remand is needed prior to adjudication of the Veteran's claims. The Veteran was afforded a VA examination in January 2010 related to his right knee. The examiner determined that the Veteran's "right knee condition (DJD) is not a result of military service" and is "related to a right knee disability that was shown prior to service." The examiner stated "specifically a right medial meniscus repair and anterior cruciate ligament repair with a pes anserinus plasty and the second surgery caused by the insufficiency of the first surgery and was thought to be a remedial surgery." The examiner further determined that the right knee condition "was not permanently aggravated beyond the normal progression of the condition by military service." The Board finds that this opinion is inadequate as it did not include a thorough rationale. Specifically, the opinion did not address the etiology of the Veteran's degenerative joint disease, nor did the examiner furnish his reasoning for his statement that the Veteran's current right knee disability was not aggravated beyond its normal progression by his military service. The examiner did not address the Veteran's lay statements regarding his right knee, discuss the nature and etiology of the Veteran's right knee disability, or adequately discuss the medical evidence of record in his opinion. When VA undertakes for provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here the opinion is insufficient because it does not offer enough of a rationale for the Board to rely on in rendering its determination on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). On remand, a new examination of the Veteran should be conducted and a detailed nexus opinion should be provided as to the nature and etiology of any currently diagnosed right knee disability. The claim of entitlement to service connection for reactive chronic anxiety and depression secondary to his right knee disability is inextricably intertwined with the pending service connection claim for a right knee disability which the Board is remanding for further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one cannot be rendered until a decision on the other has been rendered); see also Parker v. Brown, 7 Vet. App. 116 (1994). As such, the Board must also temporarily defer consideration of this claim for service connection on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to the current nature and severity of his right knee disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any currently diagnosed right knee disability. The electronic file, including a copy of this REMAND, must be made available to the examiner, and review of such must be noted in the examination report. All appropriate tests or studies should be completed, and the examiner should clearly list all current disabilities of the right knee diagnosed on examination. The examiner should provide opinions as to the following: a) As to any diagnosed right knee disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the knee disability is related to service, to include the Veteran's in-service treatment for reports of pain in his right knee, his August 1982 right knee anterior cruciate ligament reconstruction surgery, and injuries he was treated for in-service related to his duties on the flight deck. b) If the Veteran's right knee disability is not related to service, please provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his right knee disability has been permanently worsened beyond normal progression (as opposed to temporary exacerbation of symptoms) by his time in service, including his August 1982 right knee ACL reconstruction and injuries sustained during the course of his duties on the flight deck. Please explain why or why not. c) If the examiner finds that the Veteran's right knee disability has been permanently worsened beyond normal progression (aggravated) by events in service, including surgery and his duties, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of right knee disability that is attributed to his time in service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, (s)he should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disabilities. 4. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing an appropriate period of time for response, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs