Citation Nr: 1807289 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-26 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a right knee condition as secondary to service-connected left knee disability. 2. Entitlement to service connection for a right knee condition as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1990 to December 1995 and from March 2003 to December 2003. The Veteran had additional Reserve service that included ACDUTRA and INACDUTRA periods. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was provided a hearing in April 2017 with the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The issue of service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The March 2010 rating decision, which denied service connection for right knee condition, secondary to service-connected left knee tear, became final, as the Veteran did not appeal the decision or submit new and material evidence within a year of the decision. 2. The evidence submitted since March 2010 relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee condition and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying service connection for a right knee condition, secondary to service-connected left knee tear, became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for a right knee condition, secondary to service-connected left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105 (2012). However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for a right knee condition. The claim was previously denied in a March 2010 rating decision due to there being no medical evidence showing the Veteran's right knee condition to be related to his service-connected left knee disability or his active duty service. Since the March 2010 rating decision, the Veteran has submitted a September 2014 private opinion in which the physician found that the Veteran's right knee disability was due to him compensating for his left knee pain. The Board finds this evidence is new, as it has not been part of the record before, and material, as it relates to a factor in possibly substantiating the claim. Therefore, the evidence is to be considered new and material, and the claim is reopened. ORDER New and material evidence having been received, the petition to reopen service connection for a right knee condition, secondary to service-connected left knee disability, is granted. REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's claim. The Veteran contends that his right knee condition was caused and/or aggravated by his service-connected left knee disability. In October 2014, the Veteran was provided a VA examination. The examiner noted the Veteran had a right meniscus tear. After examination, the examiner opined that the Veteran's right knee condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. He noted that this opinion also included aggravation. The examiner rationalized that there was no evidence that the Veteran's left knee was unstable, and VA records showed no connection of the left knee to the right knee. The examiner further rationalized that evidence-based medicine has shown that one joint does not affect other joints or aggravate other joints. The examiner stated the only exception would be if the left knee was unstable and caused him to fall. In April 2017, the Veteran was provided a hearing. The Veteran stated that through the years he would feel pain in his right knee, and in 2009, the pain finally became unbearable. The Veteran stated this was the time after his 2007 left knee surgery and subsequent rehabilitation. The Veteran stated he felt having to overcompensate on his right knee due to his left knee disability caused his right knee condition. The Board finds the October 2014 opinion is inadequate to fairly adjudicate the Veteran's claim for service connection. Although the VA examiner opined that there is no evidence based medicine that one joint affects or aggravates other joints, the examiner did not address whether the Veteran's overcompensating or putting more stress on his right knee due to his service-connected left knee disability and subsequent surgery, caused or aggravated his right knee condition. Additionally, the examiner never addressed the Veteran's lay statements regarding when his symptomatology began and his overcompensation on the right knee due to his left knee disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the Board notes that the Veteran's military personnel record shows that in November 2009, the Veteran visited the Air Force active duty clinic complaining of right knee pain following left knee rehabilitation during what appears to be a period of ACDUTRA. As such, an opinion also addressing this visit is needed. The Board also acknowledges that the Veteran provided a September 2014 opinion from a private physician which stated it was his opinion that the Veteran's right knee pain could be a result of him compensating for his left knee. However, a medical statement that there could have been an etiological relationship between the Veteran's right knee condition and his service-connected left knee disability is a speculative opinion. Such a speculative opinion is not probative, but, rather is inconclusive. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician's statement framed in terms such as "may," "could," or "possible" is not probative); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (statement that outcome "may or may not" have been different is speculative). Further, the physician provided no rationale or basis for such opinion as required under the law. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Therefore, because the VA examiner did not address the Veteran's lay statements, as well as the Veteran's overcompensation of the right knee and the November 2009 in-service complaint for right knee pain, the Board finds that a remand is required to obtain an addendum opinion addressing the above. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records relevant to the Veteran's right knee condition. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the October 2014 opinion. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the October 2014 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, to include the Veteran's November 2009 complaint of right knee pain following his left knee rehabilitation, and the Veteran's lay statements concerning his overcompensation of the right knee as a result of his service-connected left knee disability, as well as the onset of current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee condition is due to his service-connected left knee disability, to include any right knee overcompensation caused or resulting from such disability? b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee condition is aggravated by his service-connected left knee disability, to include any overcompensation of the right knee caused or resulting from such disability? "Aggravation" is defined as any worsening beyond the natural progression of the disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 3. After completion of the above, readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and afford them a reasonable opportunity to respond before the file is returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs