Citation Nr: 20004233 Decision Date: 01/17/20 Archive Date: 01/16/20 DOCKET NO. 16-25 740 DATE: January 17, 2020 ORDER The request to reopen a claim for service connection for a lumbar spine disability is granted; to this extent only, the appeal is granted. The request to reopen a claim for service connection for a left knee disability is granted; to this extent only, the appeal is granted. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a left knee disability is granted. REMANDED The issue of entitlement to an evaluation in excess of 10 percent for a right knee disability is remanded. FINDINGS OF FACT 1. In September 2008, the Regional Office (RO) denied a claim of service connection for a lumbar spine disability; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. 2. Evidence received since the September 2008 RO decision is new, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for a lumbar spine disability. 3. In June 2012, the RO denied a claim of service connection for a left knee disability; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. 4. Evidence received since the June 2012 RO decision is new, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for a left knee disability. 5. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is at least as likely as not related to his service. 6. Resolving reasonable doubt in the Veteran’s favor, his left knee disability is at least as likely as not related to his service. CONCLUSIONS OF LAW 1. The September 2008 decision that denied a claim for a lumbar spine disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. The criteria to reopen a claim for service connection for a lumbar spine disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2012 decision that denied a claim for a left knee disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 4. The criteria to reopen a claim for service connection for a left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1986, from November 1990 to April 1991, and from December 2004 to June 2006. The Veteran, his spouse, and his son testified before the undersigned Veterans Law Judge during a June 2019 videoconference hearing; a transcript is of record. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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. 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. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. 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. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The request to reopen a claim for service connection for a lumbar spine disability In September 2008, the RO denied claims of service connection for a low back disability because it found no in-service incurrence or nexus with service. The Veteran did not file a notice of disagreement and no new evidence was submitted within one year of the decision. 38 C.F.R. § 3.156 (b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The denial became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In January 2014, the Veteran filed a new informal claim to reopen the claims of service connection for a lumbar spine disability. In May 2014, the RO denied the request to reopen the claim for a lumbar spine disability for lack of new and material evidence. Evidence submitted since the last prior final denial includes an April 2019 letter from his treating physician, Dr. J.M., stating that the Veteran has a lumbar spine degenerative disc disease that was “permanently aggravated while he was on active duty.” This evidence is new and material since it concerns a nexus between the claimed condition and military service, and thus, the claim is reopened. 2. The request to reopen a claim for service connection for a left knee disability In June 2012, the RO denied claims of service connection for a left knee disability because it found no in-service incurrence or nexus with service. The Veteran did not file a notice of disagreement and no new evidence was submitted within one year of the decision. 38 C.F.R. § 3.156 (b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The denial became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In January 2014, the Veteran filed a new informal claim to reopen the claims of service connection for a left knee disability. In May 2014, the RO denied the request to reopen the claim for a left knee disability for lack of new and material evidence. Evidence submitted since the last prior final denial includes a March 2016 VA examiner’s opinion that the Veteran’s left knee has likely been subject to the same in-service stresses as the right knee. This evidence is new and material since it concerns a nexus between the claimed condition and military service, and thus, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Lumbar spine disability The Veteran contends that his current lumbar spine degenerative disc disease is related to back pain he experienced in service from carrying heavy weights while he served in Iraq for the second time. See June 2019 Board Hearing Transcript. The Veteran’s service treatment records from 2005 document complaints of low back pain. He was diagnosed with degenerative joint disease of the lumbar spine based on a x ray imaging in 2008. As for the nexus element, three medical opinions are associated with his claims file. As noted above, the Veteran submitted a letter from Dr. J.M., dated in April 2019, stating that the Veteran’s lumbar degenerative disc disease was as likely as not “permanently aggravated while he was on active duty” and that “[i]t is likely that the activities required of him in his military service was the basis for this aggravation.” Dr. M. stated that he reviewed the Veteran’s service treatment records from 2005 where he complained of low back pain. He also explained that [i]n many instances patients have degenerative changes in their spine or in the hips or knees that they are not aware of and, once aggravated, begin to cause pain on a more or less lifelong basis. The Veteran’s service treatment records note that he complained about low back pain in 2005. In a February 2008 VA examination, the Veteran reported he carried heavy packs of 70 to 100 pounds and developed low back pain. An October 2014 VA examiner opined that it is less likely than not that the Veteran’s lumbar spine degenerative joint disease was caused by or the result of his right knee disability. A March 2016 VA examiner opined that due to inaccuracy of the results of range of motion testing, resort to speculation is required to opine whether a right knee condition and/or left knee condition are the cause of the lumbar spine condition. The Board notes that neither October 2014 examiner nor March 2016 examiner provided an opinion for direct service connection. Although the examiners reached different conclusions, the Board finds that all three medical opinions are probative, for they were provided by qualified medical professionals and based on the facts found in the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As for the issue of whether his lumbar spine disability was caused by his knee disabilities, the evidence preponderates against such finding. However, these opinions do not refer to direct service connection and thus do not contradict the April 2019 opinion by Dr. M., which the Board finds is as equally competent and probative as the other two opinions. Therefore, resolving reasonable doubts in the Veteran’s favor, service connection for a lumbar spine disability is granted. 38 U.S.C. § 5107. 4. Left knee disability The Veteran has a current diagnosis of left knee degenerative joint disease with chondromalacia patella. See, e.g., May 2012 VA Examination Report. His service treatment records document an in-service injury to the right knee, for which he is service-connected. In addition to complaints with the right knee, a December 2005 service treatment record documents that the Veteran complained about left knee pain. The Veteran contends that his left knee disability is proximately due to his service-connected right knee disability. See, e.g., June 2019 Board Hearing Transcript. Post-service medical treatment records indicate that the Veteran has had pain in bilateral knees, the right worse than the left. See August 2010 VA Treatment Record; September 2010 Private Treatment Record; March 2012 Statement in Support of the Claim. Two examiners opined that the Veteran’s left knee disability is less likely than not proximately due to his right knee disability. A May 2012 examiner found no evidence of trauma to the left knee due to the right knee condition or leg length discrepancy due to the right knee condition, but found other factors such as aging, daily/occupational stresses, or other medical conditions could not be ruled out as likely causes or contributing factor. An October 2014 examiner found that the Veteran has similar degenerate changes in both knees and opined that these degenerate changes were due to obesity. Neither examiner provided an opinion for direct service connection for the left knee disability. Unlike these examiners, a March 2016 VA examiner stated that because the degenerative changes were evidenced in the posterior horn of the left medial meniscus by an August 2010 MRI, only four years after the most recent release from active duty in 2006, the left knee had “likely been subjected to the same stresses … as the right [knee]” in service. Even though the examiner doubted the accuracy of the knee joint ranges of motion during the physical examination, the examiner stated that “the Veteran might have claimed direct service connection for the left knee.” Additionally, the Veteran submitted a letter from Dr. K.C., dated April 2019, stating that the Veteran’s left and right knee pain, chondromalacia, and knee osteoarthritis and subsequent treatment over the years “are more likely than not related to his prior injury and service” based on the Veteran’s “history and review of records.” Although the examiners reached different conclusions, the Board finds that all four medical opinions are probative, for they are provided by qualified medical professionals and based on the facts found in the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the March 2016 examiner’s concern for inaccuracy of the results of range of motion test is relevant in evaluating the current severity of knee disabilities, but such concern is not relevant to the examiner’s opinion for the etiology of the disabilities. Moreover, there is no medical opinion refuting direct service connection for the left knee disability. Therefore, resolving reasonable doubts in the Veteran’s favor, service connection for a left knee disability is granted. 38 U.S.C. § 5107. REASONS FOR REMAND The issue of entitlement to an evaluation in excess of 10 percent for a right knee disability is remanded. During the June 2019 Board hearing, the Veteran indicates that his right knee disability has gotten worse over the last two years. The Veteran underwent a VA examination in May 2014 and March 2016. At the May 2014 examination, the Veteran stated that he was “hurting too bad today to bend his knee.” The range of motion tests were not conducted during this examination because he was in too much pain to flex or extend his knee. The March 2016 examiner noted that the results of the range of motion test are artifactual due to strong muscular resistance. As such, the results of range of motion test at these examinations are not available. The Veteran has submitted results of knee disability benefits questionnaires conducted by his treating physician on two occasions in October 2016 and May 2019. Thus, the lack of reliable range of motion results at the May 2014 and March 2016 examinations does not prevent the Board from ascertaining the Veteran’s right knee condition during the appeal period. However, although these private disability benefits questionnaires in October 2016 and May 2019 provide some information on severity of the knee condition during flareups or after repeated use over a period of time, they do not meet requirements under Correia. Correia v. McDonald, 28 Vet. App. 158 (2016) As such, the Veteran should be provided a current VA examination to ascertain the current status of his service-connected right knee disability. The matters are REMANDED for the following action: Schedule the Veteran for an orthopedic type examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information from the Veteran regarding the frequency, severity, 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 his right knee disability alone and discuss the effect of the Veteran’s right knee disability 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). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.