Citation Nr: 20023968 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 18-04 498 DATE: April 7, 2020 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for mild right knee degenerative joint disease (right knee disability). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left knee arthritis as secondary to the service-connected right knee disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the lumbar spine as secondary to the service-connected right knee disability. 4. Entitlement to service connection for left knee arthritis as secondary to the service-connected right knee disability. 5. Entitlement to service connection for arthritis of the lumbar spine as secondary to the service-connected right knee disability. 6. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ORDER New and material evidence to reopen the claims of entitlement to service connection for left knee arthritis and arthritis of the lumbar spine as secondary to the service-connected right knee disability has been received, and the claims are reopened; to that extent only, the claims are granted. REMANDED Entitlement to a disability rating in excess of 10 percent for the right knee disability is remanded. Entitlement to service connection for left knee arthritis as secondary to the service-connected right knee disability is remanded. Entitlement to service connection for arthritis of the lumbar spine as secondary to the service-connected right knee disability is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Service connection for left knee arthritis and arthritis of the lower back was denied in an August 1997 rating decision that was not appealed. 2. Evidence received since the August 1997 decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claims for service connection for left knee arthritis and arthritis of the lumbar spine as secondary to the service-connected right knee disability are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1973 to May 1993. This case is before the Board of Veterans’ Appeals (the Board) on appeal of an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified before the undersigned during a January 2020 travel Board hearing; a copy of the transcript is of record. During the hearing, the record was held open for 60 days to allow for the submission of additional evidence; however, no evidence was submitted. During the Board hearing before the undersigned, the Veteran testified that she was unable to work due to her service-connected right knee disability. Therefore, the Board has listed the raised TDIU claim as an additional issue on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Reopening a Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for left knee arthritis and arthritis of the lower back was denied in an August 1997 rating decision based on a determination that the claims were not well grounded and that the Veteran had not been diagnosed with arthritis of the left knee or arthritis of the spine; this decision was not appealed. The evidence received in pertinent part since the August 1997 decision includes VA treatment records and examinations that show diagnoses of left knee degenerative joint disease and degenerative arthritis of the spine. Because such diagnoses were not present at the time of the prior final denial, this evidence is sufficient to reopen the previously-denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claims for service connection are in order. Justus, supra; Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. The Veteran contends that service connection is warranted for her left knee arthritis and arthritis of the lumbar spine as they are related to her duties in service; or alternatively, are related to her service-connected right knee disability. Specifically, the Veteran testified before the undersigned as to her duties involved with in-flight maintenance to include repairing radios, in-flight and on the ground, that required lifting 35 to 55 pounds of equipment. She also testified that she experienced a couple of hard landings while in aircrafts. The Veteran’s DD Form 214 shows that she was a communication equipment technician. The Veteran’s service personnel records show that she was awarded the Senior Airman Aircrew Member Badge. Service treatment records show complaints of back pain in March 1983; muscle spasms of the lumbar area in April 1983; left knee pain in 1986; upper back pain in November 1988 after a car accident; and back pain in October 1991. The Veteran was afforded a VA examination in May 2014 in which the examiner diagnosed degenerative arthritis of the spine. The examiner opined that it was less likely as not that the current low back condition was caused by or a result of active duty service. The examiner stated that there was no objective evidence that the back condition was a chronic, ongoing, treated condition per service medical records or soon after active duty service. The examiner stated that there was no objective evidence of aggravation. The examiner stated that back symptoms complained of over 20 years later could not reasonably be connected to active duty service when there were multiple other aging/occupational/daily activity factors in the intervening years. The Veteran was afforded a separate VA examination in May 2014 by the same examiner. The examiner diagnosed left knee degenerative joint disease. The examiner opined that it was less likely as not that the current left knee condition was caused by or a result of active duty service. The examiner stated that there was no objective evidence that the left knee condition was a chronic, ongoing, treated condition per service medical records or soon after active duty service. The examiner stated that there was no objective evidence of aggravation. The examiner stated that medical literature review did not support a cause/effect relationship of a one side joint condition causing the failure of the opposite side over and above its expected normal progression with time. The examiner stated that the left knee symptoms complained of over 20 years later could not reasonably be connected to active duty service when there were multiple other aging/occupational/daily activity factors in the intervening years. The Board finds that the May 2014 examiner did not address the pertinent in-service evidence of record as outlined above, nor the Veteran’s contentions regarding her in-service duties, and that the opinions were at least in part conclusory. The Board finds that addendum VA opinions should be obtained on remand. That is, the Board finds that another opinion by a different examiner would be helpful in ascertaining the nature and etiology of the Veteran’s claimed conditions. In regards to the claim for the right knee, the Board notes that the Veteran was last afforded a VA examination to assess her right knee disability in May 2014. In her September 2014 notice of disagreement, January 2018 formal appeal, and testimony before the undersigned, the Veteran indicated that the symptoms of her right knee disability had increased in severity to include use of a cane, decrease in range of motion, use of a walker, use of a scooter for longer distances, swelling, increased pain, and use of a knee brace. As such, the Board finds that the Veteran should be afforded a VA examination on remand to address the current severity of her right knee disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Finally, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the Veteran’s claims on appeal and is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and ask her to complete and return the form. 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by her as pertinent to her claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 3. Obtain addendum VA opinions to determine the nature and etiology of the Veteran’s claimed left knee arthritis and arthritis of the lumbar spine. The RO should request the opinions from different examiner(s) than the individual who provided the May 2014 opinions. Examinations should be performed if deemed required by the examiner(s) providing opinions. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner(s). The examiner(s) should: Opine whether it is at least as likely as not (50 percent or better probability) that the left knee arthritis and arthritis of the lumbar spine had onset in service or are otherwise related to service, to specifically her duties involved with in-flight maintenance of lifting 35 to 55 pounds of equipment and experiencing hard landings while in aircrafts. The examiner(s) should also address the in-service complaints of back pain in March 1983; muscle spasms of the lumbar area in April 1983; left knee pain in 1986; upper back pain in November 1988 after a car accident; and back pain in October 1991. Opine whether it is at least as likely as not (50 percent or better probability) that the left knee arthritis and arthritis of the lumbar spine were caused or aggravated (permanently worsened) by the Veteran’s service-connected right knee disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 4. Afford the Veteran a VA examination to assess the manifestations of the service-connected right knee disability. A copy of the letter notifying the Veteran of the scheduled appointment should be associated with the electronic claims folder. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. Ensure that the examiner provides all information required for rating purposes, to include a discussion of the functional and occupational impact of the right knee disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 5. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.