Citation Nr: 20021498 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 10-04 409A DATE: March 26, 2020 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for right-knee disorder and the appeal is granted to this extent only. New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for left-knee disorder and the appeal is granted to this extent only. REMANDED Entitlement to service connection for right-knee disorder, to include osteoarthritis, is remanded. Entitlement to service connection for left-knee disorder, to include osteoarthritis, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as breathing problems) is remanded. Entitlement to an increased disability evaluation in excess of 40 percent for lumbosacral strain is remanded. Entitlement to total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An April 2008 rating decision denied service connection for right-knee disorder and for left-knee disorder, the Veteran received notice of the decision and he did not file a timely appeal. 2. Evidence received since the April 2008 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The April 2008 denial of the claims for service connection for right-knee disorder and for left-knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2019). 2. New and material evidence has been received to reopen the previously denied and final claims of service connection for right-knee disorder and for left-knee disorder. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1966 to August 1968. 1. Whether new and material evidence has been received sufficient to reopen a claim for right-knee disorder, to include osteoarthritis. 2. Whether new and material evidence has been received sufficient to reopen a claim for left-knee disorder, to include osteoarthritis. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Board notes in its review of the record that the last final decision denying the claims for service connection for right-knee disorder and left-knee disorder is in April 2008. A notification letter for the denial was sent to the Veteran in early May 2008. The Veteran did not appeal the decision within one year of the date of the notification letter and the decision became final. Although a December 2008 rating decision denied the claims for lack of new and material evidence appears and thereby had prematurely found the April 2008 decision was final and the claims could not be reopened, the December 2008 rating decision proceeded to discuss the merits of the claims at some length, thereby, in effect, “reopening” the claims, which were never under a final decision and closed. The Board further notes there has been no prejudice to the Veteran, as the December 2008 decision, as just stated, did not simply deny reopening, but set forth reasons for denying the claim. Moreover, for either of those decisions, if taken to be the last final decision, no appeal was initiated within the regulatory one-year period required to do so. Regardless of a decision by the Agency of Original Jurisdiction (AOJ) to reopen, or, as in this case, effectively reopening by addressing the merits of the claims, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). On this basis and looking to both the April 2008 and December 2008 rating decisions, new and material evidence would consist of medical evidence or a “persuasive” medical opinion showing the disorder is caused by or the result of military service. Since the April 2008 rating decision, the record now includes the June 2008 Residual Functional Capacity Questionnaire of Dr. S.R., the Veteran’s private treatment provider. Although the December 2008 rating decision did not find her positive opinion for service connection persuasive, as she did not give indication that she had reviewed the service treatment records (STRs), the Board allows Dr. S.R. a presumed credibility, until rebutted. Moreover, the April 2008 rating decision was based on an April 2008 VA examination for knees, the findings of which included there were no constitutional symptoms of arthritis, no incapacitating episodes of arthritis and no inflammatory arthritis. Yet, the Board’s review of the record shows that since that examination, the record is replete with findings on examination, by x-ray and in MRI imaging, of osteoarthritis of the knees. As this evidence presents the possibility of a ratable disability, the Board finds this evidence was not of record at the time of the final rating decision and is therefore new. Moreover, it is material, as it provides information possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claims. The evidence is neither cumulative nor redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claims will turn. For these reasons, the claims are reopened.   REASONS FOR REMAND 1. Entitlement to service connection for right-knee disorder, to include osteoarthritis. 2. Entitlement to service connection for left-knee disorder, to include osteoarthritis. When the Veteran underwent a VA examination for knees in April 2008, the VA examiner appears to have based her negative opinion for service connection solely on the absence of a diagnosed knee disability in service treatment records. The mere lack of documentation in the service records, in itself, is not a sufficient basis for a rationale. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The VA examiner noted complaints of knee pain in service, but did not discuss a potential relationship between that pain and a current knee disability other than to say that there was no disability documented, and thus, it is inadequate to address the questions posed on appeal. Therefore, there is insufficient competent medical evidence for VA to make a decision on his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is necessary for a VA examination in order to obtain an opinion regarding the nature and etiology of the Veteran’s currently diagnosed knee disabilities. 3. Entitlement to service connection for COPD (claimed as breathing problems). STRs reflect various complaints of difficulty breathing. According to a January1967 service treatment record, physical examination revealed occasional wheezes in his chest. In June 1967, it was noted that he had trouble breathing after smoking. A March 1968 service treatment also reflects that the Veteran had some shortness of breath. At that time, his blood pressure was 160/90 and the impression noted was allergic reaction to penicillin. The Veteran was afforded a VA examination in October 2009 in which the VA examiner opined that the Veteran’s symptoms were not specific for COPD. Additional current treatment records do not show a diagnosis of COPD. However, VA treatment records reflect that the Veteran has exertional dyspnea which is probably multifactorial. See September 2010 VA treatment record. It was further indicated that a CT of the chest would be ordered to check for interstitial lung involvement. It is unclear whether any CT of the chest was ever completed because there is no record of it associated with the file. The Veteran has additionally alleged that his respiratory condition began in service after completing a gas chamber event. In light of the missing CT study requested to determine etiology of the Veteran’s diagnosed exertional dyspnea and the Veteran’s recent assertions, a remand is warranted to obtain any completed CT of the chest an additional examination and opinion regarding nature and etiology of any currently diagnosed respiratory disorder. 4. Entitlement to an increased disability evaluation in excess of 40 percent for lumbosacral strain. The record supports that the Veteran’s service-connected lumbosacral strain may have worsened since his last VA examination. As such, a new VA examination is warranted. Specifically, in March 2016, the Veteran stated his back disability causes great pain and severely limits normal daily activities. He also complained that he has further decreased range of motion and more frequent flare-ups, which he further reported occur weekly and require bed rest. When the evidence suggests that a disability has worsened since the veteran’s last VA examination and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, the Veteran should be afforded a current VA examination to assess the current severity of his service-connected lumbosacral strain. 5. Entitlement to TDIU. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In a Regional Office rating decision dated in April 2010 the Veteran was denied entitlement to a TDIU. The Veteran did not appeal this decision. However, in March 2016, the Veteran’s representative indicated that the Veteran was seeking a TDIU. After considering Rice, the Board construes these statements to be a new claim for a TDIU. Therefore, the issue of entitlement to TDIU has once again been raised during the course of the appeal. As any decision with respect to the claims for service connection and an increased rating may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined with the claims on appeal. A as such, adjudication of the TDIU claim is deferred. Additionally, on remand, the Veteran should be informed that he must complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment at any VA facility and by any private treatment provider for right-knee disorder, left-knee disorder, lumbosacral strain, and COPD. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for examinations conducted by VA examiners with appropriate specialties for producing findings for knee disorders, back disorders and respiratory disorders, to include COPD. The complete electronic claims file must be made available to the examiners in conjunction with the examination. The examiners should detail all findings. The examiner for knee disorders is requested to render opinions addressing the following: (a) Whether it is at least as likely than not (a 50 percent probability or more) or less likely than not (less than a 50 percent probability) that any currently diagnosed disabilities of both knees had their onset during active service and are caused by an event. Injury or illness during active service. (b) Whether it is at least as likely than not (a 50 percent probability or more) or less likely than not (less than a 50 percent probability) that any currently diagnosed arthritis had its onset in service, is related to any in-service disease, event or injury, or was manifest to a compensable degree within one year after discharge from active service All opinions must be accompanied by a rationale, by which conclusions are supported with references to findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on all opinions in the record, as well as to acknowledge, address, consider, and discuss all lay evidence of the Veteran and his reports to treatment providers, as they appear throughout the record, as well as all lay evidence of other persons, as it pertains to the right-knee disorder and left-knee disorder. 3. The examiner for lumbosacral strain is requested to provide findings and diagnoses as to the nature, extent and current severity of service-connected lumbosacral strain. The examiner is requested to make findings showing testing for pain, active and passive motion, in weight-bearing and non-weight-bearing maneuvers, and, if possible, with comparisons to the ranges of motion of the opposite joint, damaged or undamaged. If the foregoing testing is impracticable, induces discomfort or pain or is medically inappropriate, the examiner should provide an explanation as to why. The examiner is further requested to produce findings reflecting the extent of impairment of function due to flare-ups and repetitive use, as well as impairment of function attributable to pain, weakness, fatigability, or incoordination. However, it will be insufficient for the examiner to fail to make any findings on the basis that to do so would be mere speculation. Even if flare-ups or pain are neither reported nor exhibited during the examination, once again, it will be insufficient for the examiner to make entries such as “not applicable,” “would be mere speculation” or fail make any findings whatsoever. The examiner must elicit from the Veteran details as to the effects or what might be the effects on function from flare-ups, from repetitive use and from pain, weakness, fatigability, or incoordination, then estimate the loss of range of motion and function in terms of actual degrees, using his or her professional medical knowledge, training and experience. The examiner is also requested to comment on all opinions in the record, as well as to acknowledge, address, consider, and discuss all lay evidence of the Veteran and his reports to treatment providers, as they appear throughout the record, as well as all lay evidence of other persons, as it pertains to lumbosacral strain. 4. The examiner for respiratory disorders, to include COPD, is requested to render an opinion addressing the following: Whether it is at least as likely as not (a 50 percent probability or more) or less likely than not (less than a 50 percent probability) that any respiratory disorder, to include COPD, is caused by an event, injury or illness during active service. All opinions must be accompanied by a rationale, by which conclusions are supported with references to findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on all opinions in the record, as well as to acknowledge, address, consider, and discuss all lay evidence of the Veteran and his reports to treatment providers, as they appear throughout the record, as well as all lay evidence of other persons, as it pertains to a respiratory disorder, to include COPD. 5. After completing the above development and any other indicated development, review the development. To the extent there is additional development needed, it should be undertaken, as should any corrective action to comply with the above. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.