Citation Nr: 20004487 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-12 841 DATE: January 21, 2020 ORDER New and material evidence having been received, the claims of entitlement to service connection for a chronic right knee disorder and for a chronic low back disorder are reopened. REMANDED Entitlement to service connection for a chronic right knee disorder is remanded. Entitlement to service connection for a chronic low back disorder is remanded. FINDINGS OF FACT 1. An unappealed January 2016 rating decision denied service connection for a chronic right knee disorder and for a chronic low back disorder. 2. Evidence added to the record since the January 2016 rating decision, which was not previously of record and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claims for entitlement to service connection for a chronic right knee disorder and low back disorder. CONCLUSION OF LAW The criteria for reopening the claims for entitlement to service connection for a chronic right knee disorder and for a chronic low back disorder have been met. 38 U.S.C. § 5108; 39 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from September 1971 to June 1973. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in July 2017 by a Department of Veterans Affairs (VA) Regional Office (RO) determining that new and material evidence had been received to reopen the claims for service connection for a chronic right knee disorder and for a chronic low back disorder. The claim for service connection for these disabilities was then denied. In September 2019, the Veteran testified at a Video Conference Board Hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. New and Material Evidence Having Been Received, the Claims of Entitlement to Service Connection for a Chronic Right Knee Disorder and for a Chronic Low Back Disorder are Reopened. The Veteran seeks to reopen previously denied claims. Although the RO has already reopened this appeal, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, the VA must first determine whether the additional evidence is “new and material.” Second, if the VA determines that new and material evidence has been added to the record, the claim is reopened and the VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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. 39 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection for right knee disability was initially denied in an October 2004 decision. The RO determined, in essence, that the record was negative for evidence of a current disability of the right knee, that the Veteran had injured his right knee in service, or that he had a chronic disability of the right knee that was linked to his active service. The Veteran did not file a notice of disagreement or new, relevant evidence within one year of the rating decision. As such, the rating decision became final. Most recently, in November 2015, the Veteran filed an application to reopen his claim for service connection for right knee disability. He also filed a claim for service connection for a low back disorder. In a rating decision dated January 2016, the RO determined that no new and material evidence had been submitted to reopen the previously denied claim for service connection for a chronic right knee disorder. The RO also found that the condition identified as a chronic low back disorder was neither incurred in nor caused by the Veteran’s military service. The Veteran did not file a notice of disagreement or new, relevant evidence within one year of the January 2016 rating decision. As such, the rating decision became final. Evidence received since the January 2016 rating decision includes an October 2018 opinion letter addressing the Veteran’s chronic low back disorder, a November 2019 opinion letter addressing the Veteran’s chronic right knee disorder, and testimony taken at the September 2019 hearing. His evidence is new to the record, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. Accordingly, the Veteran’s petition to reopen his claims for entitlement to service connection for a chronic right knee disorder and for a chronic low back disorder are granted. REASONS FOR REMAND 1. Entitlement to Service Connection for a Chronic Right Knee Disorder is Remanded. The Veteran contends that he injured his right knee during airborne training in 1972, and that his current chronic right knee disorder is related to that injury. Military personnel records document that the Veteran attended Basic Airborne at Ft. Benning in February 1972, and that he was transferred to Fort Carson shortly thereafter. His April 1973 separation examination documents a fractured right midshaft tibia, no sequelae. There was also a reference to the Veteran having a stress fracture of the right leg while being stationed at Ft. Benning. At his September 2019 hearing, the Veteran testified that he was experiencing problems with his right knee at the time of his separation from service. The Veteran was afforded a VA examination for his right knee disorder in January 2018. During that examination, the Veteran reported that he walked with a limp continuously from the time he was at airborne school, throughout his period of service, and subsequent to his separation from service. He reported that his altered gait continued until he underwent arthroscopic surgery in 1997. The examiner opined that the Veteran’s chronic right knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner acknowledged that a clinically significant injury to the knee joint occurring in 1972 would most certainly have been expected to be productive of advanced degenerative arthritis now more than 40 years later. However, she noted that the current findings of equivalent levels of degenerative joint disease of both knees argues against the in-service injury having been clinically significant in terms of involving the knee joint or surrounding soft tissue and particularly involving the knee joint surfaces. The examiner determined the 1997 arthroscopic surgery neither confirmed nor refuted the probability of a clinically significant injury during military service and she stated that while the Veteran had sustained an in-service medial tibial stress fracture, the physician’s notation of “no sequelae” indicated that the fracture had resolved by the time of separation. The examiner attributed the Veteran’s degenerative arthritis shown in both knees to the effects of normal aging. The Board finds the January 2018 VA examination to be inadequate. The examiner did not address and reconcile the Veteran’s lay report that he continuously walked with a limp for 25 years following his 1972 injury, and his report of continued pain in his right knee. The Veteran also submitted a November 2019 private nexus statement which opines the Veteran’s symptoms are likely due to meniscal deficiency resulting from his injury during basic training and subsequent arthroscopic debridement. No substantive rationale was provided. There was also no discussion of the clinical significance of the Veteran developing arthritis in both his knees. Such weakens the probative value of that opinion. Thus, the Veteran should be afforded a new examination for his chronic right knee disorder. 38 U.S.C. § 5103A; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 2. Entitlement to Service Connection for a Chronic Low Back Disorder is Remanded. VA treatment records indicate the Veteran received treatment for sciatica beginning in February 2014 following a post-service slip and fall injury. An April 2016 treatment record indicates that the Veteran underwent a lumbar fusion in 2016. At his September 2019 hearing, the Veteran testified that he was seeking service connection for his chronic low back disorder secondary to his chronic right knee disorder. He contends that his altered gait, characterized as walking with a limp, aggravated his low back disorder. A decision on whether the Veteran is entitled to service connection for a chronic right knee disorder impacts his entitlement to service connection for a chronic low back disorder. Therefore, his claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). In this circumstance, Remand is the appropriate remedy. See id. An October 2018 letter from the Veteran’s private physical therapist, Z.T., opined that it is likely that if the Veteran did indeed walk with compensation for his right knee pain over several year that this was a contributory factor to the development of his lumbar issues. The Board acknowledges the Veteran’s submission of the October 2018 private nexus opinion but finds that it is inadequate to adjudicate the Veteran’s claim as it is speculative. Bostain v. West, 11 Vet. App. 124 (1998). Because the evidence indicates an association between his chronic low back disorder and his chronic right knee disorder, and his service treatment records include a possible diagnosis for a chronic low back disorder, the Board finds a VA examination is warranted to determine the etiology of any current chronic low back disorder. 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, efforts should be made to obtain private medical records for treatment of the Veteran’s chronic right knee disorder and for his chronic low back disorder to include records from St. Luke’s Clinic and from River of No Return Physical Therapy. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and private (non-VA) health care providers who have treated him for his chronic right knee disorder and chronic low back disorder, to include St. Luke’s Clinic and River of No Return Physical Therapy. The Veteran should be requested to sign any necessary authorization for release of private treatment records to the VA, and appropriate steps should be made to obtain any identified records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic right knee disorder and any chronic low back disorder. After a review of the claims file and examination, the examiner should address the following: (a) Identify/diagnose any disability of the right knee and/or low back that presently exists or that has existed during the appeal period. The presence or absence of arthritis should be indicated. In the event that the criteria for a diagnosis of a right knee disorder and/or low back disorder are not met, it is noted that pain resulting in functional impairment may constitute a disability for service-connection purposes. So, the examiner is to specifically state whether there is any functional impairment associated with the Veteran’s complaints of pain. The “Functional Impact” section of the report of examination should be completed. If there is not functional impairment, explain why. (b) For any diagnosed disability of the right knee and/or low back or functional impairment of the knee and/or back, state whether it is at least as likely as not that the disorder had its initial onset in service or is otherwise related to his active service. The examiner should consider and address the documented report of fractured right midshaft tibia in service along with the Veteran’s report of experiencing pain and an altered gait since service. The examiner most also consider the Veteran’s competent report of having chronic knee pain and a limp since service. (c) If the Veteran is diagnosed with arthritis, the examiner should also indicate whether such arthritis manifested in service or within one year of separation from service. (d) For any diagnosed disability of the right knee and/or low back or functional impairment of the knee and/or back, state whether it is at least as likely as not (i) caused by a service-connected disability, or (ii) aggravated beyond its natural progression by a service-connected disability. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.