Citation Nr: 20009949 Decision Date: 02/07/20 Archive Date: 02/05/20 DOCKET NO. 17-31 750 DATE: February 7, 2020 ORDER New and material evidence having been received, the service connection claim for a bilateral knee disability is reopened. REMANDED The issue of entitlement to service connection for a right knee disability is remanded. The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected anxiety disorder not otherwise specified, is remanded. The issue of entitlement to a temporary total evaluation based on hospital treatment for a period in excess of 21 days for a service-connected disability, is remanded. The issue of entitlement to a temporary total evaluation based on treatment for a service-connected disability requiring convalescence is remanded. FINDING OF FACT Since the final February 2009 rating decision, new lay and medical evidence have been received, which in conjunction with the evidence previously of record, are material because they related to the previously unestablished in-service incurrence element, thereby raising a reasonable possibility of substantiating the service connection claim for a bilateral knee disability. CONCLUSIONS OF LAW 1. The February 2009 rating decision denying the Veteran’s service connection claim for a bilateral knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). 2. Following the February 2009 rating decision, new and material evidence has been received to reopen the service connection claim for a bilateral knee disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1971, during the Vietnam Era. In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing. A transcript of the hearing has been associated with the claims file. 1. Whether new and material evidence has been received to reopen the service connection claim for a bilateral knee disability. Laws and Regulations Generally, “new” evidence is defined as existing evidence not previously submitted to agency decisions makers, while “material” evidence is defined as 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). The evidence must not be cumulative or redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. Irrespective of the Regional Office’s (RO’s) determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). Analysis The Veteran first initiated a service connection claim for a “bilateral knee condition” in August 2008. In a February 2009 rating decision, the RO denied the claim, finding the there was insufficient evidence of an in-service incurrence. He initiated an appeal of this decision and a Statement of the Case (SOC) was issued in September 2012, however the Veteran did not perfect an appeal with the timely filing of a VA form 9 or its equivalent. While no new and material evidence was received with one year of the February 2009 rating decision, new and material evidence was received prior to the RO’s issuance of the SOC. Namely, VA treatment records were associated with the claims file in April and September 2012 as well as a July 2012 Decision Review Office Hearing Transcript. In its SOC, the RO indicated having received and considered these records. Nevertheless, the RO continued to deny the underlying service connection claim for a bilateral knee condition. In effect, the SOC constituted reconsideration of the February 2009 rating decision. Subsequently, the Veteran submitted a service connection claim for a “right knee condition/bilateral knee condition” in a May 2016 Application for Disability Compensation and Related Compensation Benefits. In a May 2016 Statement in Support of Claim, he clarified that he was petitioning to reopen the previously denied service connection claim for a bilateral knee condition. In a December 2016 rating decision, the RO granted the petition finding new and material evidence had been received. The RO proceeded to bifurcate the prior service connection claim for a bilateral knee condition, into a claim for service connection for “osteoarthritis” of the left knee and “[status post] right total knee arthroplasty with osteoarthritis.” The RO denied the claims, finding there was insufficient evidence of a nexus for either claim. He timely initiated an appeal of this decision and it is now before the Board. Since the February 2009 rating decision, new lay and medical evidence has been associated with the claims file. In pertinent part, a May 2016 Chronological Record of Medical Care included a nexus statement from the treatment provider indicating it was most likely the Veteran’s participation in strenuous physical activities in-service contributed to the development and progression of the arthritis in his knees. Additionally, during an October 2019 travel Board hearing, he provided further information regarding the physical rigors of his service. Based on the foregoing, the new lay and medical evidence, in conjunction with the medical evidence previously of record documenting a complaint of pain in the knees bilaterally in-service, is material because it relates to the previously unestablished in-service incurrence or aggravation element and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received to reopen the service connection claim for a bilateral knee condition. REASONS FOR REMAND 1. The issue of entitlement to service connection for a right knee disability; and service connection for a left knee disability are remanded. The Veteran contends that he has right and left knee disabilities which stem from the physical rigors of his active duty service. See generally October 2019 Board Hearing Transcript. A review of his service treatment records (STRs) discloses he complained of bilateral knee pain on one occasion in-service. Specifically, a July 1970 Chronological Record of Medical Care documented his report of pain moving into his knees after suffering form pain in his bilateral lower extremities over a period of five days. A review of the post-service medical evidence of record shows he was diagnosed with osteoarthritis of the bilateral knees and eventually underwent a total knee arthroplasty of the right and left knees. See February 2009 Feet VA Examination Report; January 2016 Operative Report; February 2019 Operative Report. He was afforded a VA examination with respect to this claim in February 2009. The VA examiner ultimately opined the osteoarthritis of his bilateral knees was not caused by or otherwise related to his service. Rather, it was consistent with the natural aging process. Subsequently, he submitted the nexus opinion in the May 2016 Chronological Record of Medical Care noted above. Unfortunately, it appears the treatment provider did not have an opportunity to review and consider the pertinent evidence of record, to include the VA examiner’s earlier negative nexus opinion. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Accordingly, a remand is necessary for another VA examination. 2. The issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected anxiety disorder not otherwise specified, is remanded. In furtherance of this claim, the Veteran was afforded a VA examination in November 2016. Upon examination the VA examiner diagnosed him with obstructive sleep apnea. Nevertheless, the VA examiner rendered a negative nexus opinion. In doing so, despite expressly stating it was less likely than not proximately due to or aggravated by his service-connected anxiety disorder not otherwise specified, the VA examiner failed to provide any supporting rationale addressing the issue of aggravation. Cf. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). For this reason, a remand is necessary to obtain an addendum VA medical opinion. 3. The issue of entitlement to a temporary total evaluation based on hospital treatment for a period in excess of 21 days for a service-connected disability; and a temporary total evaluation based on treatment for a service-connected disability requiring convalescence are remanded. These claims are inextricably intertwined with the above remanded service connection claim for a right knee disability given they are based on hospital treatment and convalescence for a total knee arthroplasty of the right knee. See May 2016 Application for Disability Compensation and Related Compensation Benefits; Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, these claims must be remanded for further development, if necessary. The matters are REMANDED for the following action: 1. Contact the Veteran to determine if there are any relevant, outstanding private treatment records. If so, undertake all appropriate development necessary to obtain the records from each private treatment provider and/or facility identified by him. 2. Obtain all relevant, outstanding VA treatment records. 3. Once the first two requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed right and left knee disabilities. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s right and/or left knee status post total knee arthroplasty was caused by or is otherwise related to his active duty service and explain why. (b.) In rendering an opinion, the examiner should consider the relevant STRs, to include a July 1970 Chronological Record of Medical Care documenting a complaint of pain in the lower legs bilaterally over the past five days which was moving into the knees bilaterally; and a February 1971 Consultation Sheet documenting his admission that he had difficulty at Parris Island and was helped through his physical exercises, never passed a physical fitness, test and was unable to run more than a quarter to one-half mile without experiencing a black-out. (c.) In rendering an opinion, the examiner should consider the relevant medical evidence of record, to include a September 2008 VA Primary Care Nursing Note and other VA treatment records noting the Veteran underwent surgery on his left knee in 1980; and a May 2016 Chronological Record of Medical Care containing a positive nexus statement finding that it was most likely his participation in strenuous physical activities in-service contributed to the development and progression of the arthritis in his knees. (d.) In rendering an opinion, the examiner should consider the Veteran’s relevant lay statements of record, to include his testimony during the October 2019 travel Board hearing as well as a July 2012 Decision Review Officer hearing that his right and left knee disabilities are due to the physical rigors of his service. In doing so, the examiner should accept the Veteran’s lay statements as true unless there is a medical reason to doubt their veracity. In such a case, the examiner should explain why his lay statements are inconsistent with the principles of science and/or the evidence of record. 4. Once the first two requests have been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed obstructive sleep apnea. The need for an in-person examination is left to the discretion of the medical professional proffering the opinion. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s current diagnosis of obstructive sleep apnea is proximately due to or aggravated beyond its natural progression by his service-connected anxiety disorder not otherwise specified and explain why. The examiner is reminded that an opinion must address both causation and aggravation. (b.) In rendering an opinion, the examiner should consider the Veteran’s relevant lay statements of record. In doing so, the examiner should accept the Veteran’s lay statements as true unless there is a medical reason to doubt their veracity. In such a case, the examiner should explain why his lay statements are inconsistent with the principles of science and/or the evidence of record. 5. Once each of the above requests have been completed, to the extent possible, readjudicate the appeal. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, 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.