Citation Nr: 19106972 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-15 976 DATE: January 29, 2019 ORDER New and material evidence having been received, the claim to reopen service connection for a left shoulder disorder is granted. New and material evidence having been received, the claim to reopen service connection for a left knee disorder is granted. New and material evidence having been received, the claim to reopen service connection for a right knee disorder is granted. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. In a November 2013 rating decision, the RO denied reopening the Veteran’s claims of entitlement to service connection for a left shoulder disorder, a left knee disorder, and a right knee disorder; the Veteran did not appeal the decision and it became final. 2. The evidence received subsequent to the November 2013 rating decision is not cumulative of the evidence previously of record; it relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a left shoulder disorder, a left knee disorder, and a right knee disorder. CONCLUSIONS OF LAW 1. The November 2013 rating decision denying claims of entitlement to service connection for a left shoulder disorder, a left knee disorder, and a right knee disorder is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for a left shoulder disorder, a left knee disorder, and a right knee disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2007 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that despite an RO’s decision on whether to reopen a previously denied claim, the Board must make its own determination as to whether the veteran has submitted new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. New and material evidence having been received, the claim to reopen service connection for a left shoulder disorder is granted. 2. New and material evidence having been received, the claim to reopen service connection for a left knee disorder is granted. 3. New and material evidence having been received, the claim to reopen service connection for a right knee disorder is granted. The Veteran seeks to reopen previously denied claims of entitlement to service connection for a left shoulder disorder, a left knee disorder, and a right knee disorder. Specifically, the Veteran asserts he received treatment for his left shoulder and knees during active duty and the conditions have persisted since his separation from service. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “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. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, the Veteran originally submitted claims of service connection for a left shoulder condition, a left knee condition, and a right knee condition in June 2011. The RO denied service connection for left shoulder trauma with loss of sensation and popping, left knee patellofemoral syndrome and iliotibial syndrome, and right knee patellofemoral syndrome and iliotibial syndrome in a November 2011 rating decision. With regard to the shoulder, the RO found that although there were records of in-service treatment for pain and muscle strain, these complaints were considered to be acute and transitory, as no diagnosable residual or chronic disability subject to service connection was shown by service treatment records or demonstrated by evidence found on VA examination. With regard to the knees, the RO found that while service treatment records noted complaints of bilateral knee pain, a VA examination revealed normal clinical and radiological findings and pain without a diagnosed identifiable underlying condition did not constitute a disability. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In May 2013, the Veteran submitted claims to reopen his previously denied claims of entitlement to service connection for a left shoulder condition, a left knee condition, and a right knee condition. In November 2013, the RO denied reopening the Veteran’s claims, finding that the medical evidence of record did not show a diagnosis of a left or right knee disability. Further, the evidence did not show a link between the Veteran’s bilateral knee pain, left shoulder pain, and active duty service. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In February 2016, the Veteran again submitted claims to reopen his previously denied claims of entitlement to service connection for a left shoulder condition, a left knee condition, and a right knee condition. In April 2016, the RO denied reopening the Veteran’s claims, finding that the lay statements submitted did not constitute new and material evidence, as they did not establish a relationship between the Veteran’s conditions and his active duty service. The Veteran submitted a timely NOD in April 2016 and perfected his appeal in March 2017. Thus, the issues are now before the Board. At the time of the November 2013 rating decision, the evidence of record consisted of service treatment records, post-service VA treatment records, an October 2011 VA examination, a September 2013 VA examination, and lay statements. The pertinent evidence received since this time includes updated VA treatment records, a March 2016 VA examination (conducted for the right shoulder), and private treatment records. Specifically, the new evidence contains a statement from Dr. R. C., indicating the possibility that the Veteran’s left shoulder and bilateral knee conditions are related to service. Additionally, a statement from Dr. R. P. notes that the Veteran’s knee conditions are a result of his duties in service. This evidence was not before adjudicators when the Veteran’s claims were last denied and is not cumulative or redundant of the evidence of record at the time of November 2013 rating decision. The evidence also relates to unestablished facts necessary to substantiate the claims of service connection and raises a reasonable possibility of substantiating the claims. Accordingly, the claims of entitlement to service connection for a left shoulder condition, a left knee condition, and a right knee condition are reopened. To this extent only, the claims are granted. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. The Veteran is seeking entitlement to service connection for a left shoulder condition, a left knee condition, and a right knee condition. Specifically, the Veteran contends his conditions are related to the performance of activities related to active duty service. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claims. Service treatment records show that in June 2009, the Veteran presented with complaints of left shoulder pain after falling off a Zodiac (inflatable rescue boat) during training. He was diagnosed with muscle strain verses sprain. In February 2010, the Veteran reported right knee pain that had been present for two weeks. He had injured his knee running sprints and roping while wearing a full kit. He experienced steady dull pain at rest and sharp pain when running. Tenderness was noted as the medial femoral. In May 2011, the Veteran complained of left knee pain. He experienced knee pain after evaluations in the field for the last two years, but was used to the pain. In the last six months however, the pain appeared when the Veteran was inactive, after workouts, or would wake the Veteran during the night. It was noted that the Veteran had undergone surgery for a torn left meniscus in February 2004 and had made a full recovery. The Veteran was diagnosed with degenerative joint disease verses meniscus tear. On his May 2011 Report of Medical History upon separation from service, the Veteran endorsed swollen or painful joints, knee trouble, knee surgery, painful shoulders, and bursitis. He indicated he had separated his left shoulder in June 2009, sprained his right knee in January 2010, experienced swollen and painful shoulders and knees, and had bursitis in his left knee. Post-service treatment records indicate that the Veteran sought treatment for left shoulder pain beginning in May 2013 and for his knees beginning in November 2014. In March 2017, Dr. R. P., the Veteran’s orthopedist, indicated he had been treating the Veteran for his bilateral knee condition since 2014, or possibly before that at their Lexington location, and noted that the Veteran suffered from an anterior cruciate ligament (ACL) partial tear of the left knee and probable ACL tear verses partial tear of the right knee with instability to both knees and mild narrowing of the medial joint space. There was also evidence of patellofemoral arthralgia. Dr. R. P. noted that the Veteran’s initial knee injuries were the result of activities in military service and it was believed that his initial knee surgery was conducted during this time. In April 2017, the Veteran’s private physician, Dr. R. C., reviewed the Veteran’s medical records, including service treatment records, and determined that it was “certainly plausible” that the Veteran’s left shoulder and bilateral knee conditions were related to his active duty service. Although the Veteran has been afforded VA examinations for his left shoulder and bilateral knee conditions, these examinations were conducted prior to the receipt of pertinent private treatment records, including the opinions from Drs. R. P. and R. C. While both physicians opined that the Veteran’s conditions were related to, or could be related to, his active duty service, Dr. R. P. noted that the Veteran’s first knee surgery occurred in service, contradicting the evidence of record, and Dr. R. C. provided no rationale in support of his opinion. The record indicates that the Veteran was treated for a left knee torn meniscus prior to service, in February 2004, and received treatment for left shoulder pain due to post-service injuries related to work and recreational activities. See May 2013 VA Treatment Record (noting left shoulder pain after lifting a heavy object above his head) and July 2015 VA Treatment Record (noting a left shoulder injury from softball). For these reasons, remand for new VA examinations is warranted so that the new evidence of record may be considered and, with regard to the Veteran’s left knee condition, so that a medical opinion may be rendered on whether the Veteran’s current left knee condition preexisted service, and if so, whether it was aggravated during active duty service. The Board notes that the Veteran’s August 2007 Report of Medical Examination upon induction was silent as to any preexisting knee injury and as such, he is entitled to the presumption of soundness, which may only be rebutted by clear and unmistakable evidence of preexistence. If the presumption of soundness is rebutted, he is entitled to a further presumption that the disability was aggravated by service, which, likewise, may only be rebutted by clear and unmistakable evidence that there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). Therefore, on remand, the VA examiner should be asked to determine whether there is clear and unmistakable evidence that the Veteran’s left knee condition either pre-dated service or was aggravated by service. Lastly, Dr. R. P. noted that the Veteran may have been treated by his Lexington office prior to 2014. As these records, if they exist, have not been associated with the electronic claims file, remand to obtain all outstanding pertinent private treatment records is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his left shoulder and bilateral knee conditions. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran should be specifically asked to provide information and authorization regarding any possible treatment from Dr. R. P.’s Lexington office, prior to 2014. 2. After any records obtained have been associated with the evidentiary record, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left shoulder condition. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should provide an opinion as to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder condition had its onset in or is otherwise etiologically related to active duty service? Please provide a complete explanation for the opinion with reference to pertinent evidence of record. In forming his or her opinion, the examiner should address the following: a) a June 2009 service treatment record noting treatment for left shoulder pain following an accident on a Zodiac; b) a May 2013 VA treatment record noting left shoulder pain after lifting a heavy object; and c) a July 2015 VA treatment record noting left shoulder pain after playing softball. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any records obtained have been associated with the evidentiary record, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left and right knee conditions. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should provide opinions as to the following: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s right knee condition had its onset in or is otherwise etiologically related to active duty service? Please provide a complete explanation for the opinion with reference to pertinent evidence of record. b) Is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s left knee condition preexisted active service. Please provide a complete explanation for the opinion with reference to pertinent evidence of record. c) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s preexisting left knee condition WAS NOT aggravated (i.e., permanently worsened) during the Veteran’s service or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to natural progress. Please provide a complete explanation for the opinion with reference to pertinent evidence of record. d) If there is not clear and unmistakable evidence that the Veteran’s left knee condition preexisted service and was not aggravated by service, is it as least as likely as not that the Veteran’s left knee condition had its onset in or is otherwise etiologically related to active duty service? Please provide a complete explanation for the opinion with reference to pertinent evidence of record. Note that “clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel