Citation Nr: 20009975 Decision Date: 02/07/20 Archive Date: 02/05/20 DOCKET NO. 16-57 613 DATE: February 7, 2020 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a right knee condition is reopened. REMANDED 1. Entitlement to service connection for right knee disability, to include as secondary to service-connected left knee disability, is remanded. 2. Entitlement to service connection for lumbar spine disability, to include as secondary to service-connected left knee disability, is remanded. FINDINGS OF FACT 1. A March 1980 rating decision denied service connection for a right knee condition. The rating decision was not timely appealed and became final. 2. Evidence received since the March 1980 rating decision raises a reasonable possibility of substantiating the claim for service connection for right knee condition. CONCLUSIONS OF LAW 1. The March 1980 rating decision denying the Veteran’s claim for service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for right knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1979. These matters come before the Board of Veterans’ Appeals (Board) from a August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veteran’s Law Judge in a November 2019 hearing. A transcript of the hearing is of record. NEW AND MATERIAL EVIDENCE Whether new and material evidence has been received to reopen the claim for service connection for right knee condition. A March 1980 rating decision granted service connection for left knee medial meniscus tear rated at 20 percent from August 5, 1979 and denied service-connection for right knee injury for lack of evidence of an injury to the right knee. This rating decision was issued shortly after the Veteran’s discharge in 1979. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Pertinent medical records have been added to the record since the March 1980 rating decision, that include VA medical records and examinations, and lay statements from the Veteran. The Veteran underwent three VA knee examination in July 2013, November 2014, and January 2020, concerning his knee disabilities. Based on the foregoing, the Board finds that new and material evidence has been submitted regarding the claim for service connection for a right knee condition and the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for right knee disorder and lumbar spine disability, both to include as secondary to service-connected left knee disability are remanded. The Veteran contends that his right knee and lumbar spine disability are related to his active duty service. Specifically, that both conditions were caused or aggravated by his service-connected left knee disability. The Veteran has already been diagnosed with a current right knee disability, as well as a lumbar spine condition. The Veteran underwent a VA back and VA knee examinations in August 2013. In those examinations, the examiner opined that the Veteran’s right knee and lumbar spine disability is less likely as not due to or caused by his service-connected left knee disability. The examiner’s rationale further noted that both conditions were likely secondary to aging process that was accelerated by overweight status. The Veteran underwent another VA knee examination in November 2014. During that examination, the examiner provided a negative nexus concerning the Veteran’s right knee secondary to his service-connected left knee. The examiner’s rationale stated there was no clear evidence to suggest one injury would have a significant impact on the other limb. In both the July 2013 and November 2014 examinations, the obtained opinion addressing this theory of entitlement does not appear to be adequate with regard to addressing whether the right knee disability and lumbar spine disability may have been aggravated in severity by the service-connected left knee disability. The United States Court of Appeals for Veterans Claims (Court) held that “it is a big stretch of the English language to construe the phrase ‘no etiological relationship...’ as encompassing aggravation.” Allen v. Brown, 7 Vet. App. 439, 449 (1995). It does not appear that the July 2013 and November 2014 examiner’s statement that the Veteran’s right knee disability and back disability is not “proximately due to or the result of” the pertinent service-connected disability encompasses consideration of aggravation. It clearly does not contemplate aggravation any more clearly than the Court’s disapproved example. Further, the Veteran underwent a January 2020 knee examination concerning his left knee increased rating claim, not currently on appeal. During that examination, the examiner indicated that the Veteran’s right knee impairs his function significantly, however no statement was provided as to the possible relationship between the two joints. As such, the January 2020 examination presents possible conflicting medical evidence concerning the Veteran’s right knee claim. For the reasons stated above the evidence currently of record is inadequate to resolve the claim of entitlement to service connection for a right knee and lumbar spine disability. Remand of this matter for new VA opinions is therefore warranted in order to address outstanding question of aggravation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4) (effective Feb. 19, 2019); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed right knee and lumbar spine disability. The examiner is requested to review the claims file in its entirety. The examiner should then address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disability and lumbar spine disability began during or is otherwise related to his military service. b) Is it at least as likely as not that the Veteran’s right knee disability and lumbar spine disability have been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the service-connected left knee disability? If the Veteran has a right knee disability or lumbar spine disability that has been aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. In providing the requested opinions, the examiner should comment on the relevant evidence of record. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. In addressing the above, the examiner must consider and discuss the pertinent medical, periodical, and other objective evidence, and all lay assertions. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.