Citation Nr: 20028040 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 19-28 367 DATE: April 22, 2020 ORDER New and material evidence having been presented, the claim of entitlement to service connection for left knee meniscus tear with DJD (left knee condition) is reopened. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to an increased rating in excess of 30 percent for total right knee arthroplasty is remanded. FINDINGS OF FACT 1. In a June 2015 rating decision, the RO denied service connection for a left knee condition. The Veteran was notified of his appellate rights, but he did not perfect an appeal. 2. New evidence has been received since the June 2015 rating decision which relates to a previously unestablished fact necessary to substantiate the underlying claim of service connection for a left knee condition and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2015 rating decision denying entitlement to service connection for a left knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 2. New and material evidence was received on the claim for service connection for a left knee condition; thus, the claim is reopened. 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 September 1988 to September 1992 and November 2001 to March 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The April 2018 rating decision denied service connection for a left knee condition secondary to a service-connected right knee condition and denied an increased rating in excess of 30 percent for total right knee arthroplasty. A review of the record reveals an extensive complex procedural history and shows that numerous issues are in remand status at the RO. The Board notes that those issues are not yet ripe for appellate review and are not addressed in this decision. In this case, the Veteran contends that his left knee condition was caused by having to overcompensate on the left leg due to the service-connected right knee condition, and that his left knee pain is related to his service-connected radiculopathy of the left lower extremity. The Veteran also maintains that the VA knee examination did not adequately consider service connection for his left knee on a secondary basis. The Veteran also states that his right knee condition is worsening, so he should be entitled to a rating in excess of 30 percent. The Veteran further argues that the VA knee examination did not properly consider the impact of flare-ups on his right knee disability. New and material evidence having been presented, the claim of entitlement to service connection for a left knee condition Regardless of the RO’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The claim of service connection for a left knee condition may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence that was 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The June 2015 rating decision denied the Veteran’s claim of service connection for a left knee condition because the Veteran did not appear for a VA knee examination. The Veteran did not appeal that decision and it became final. Since the June 2015 rating decision, the Veteran was afforded a March 2018 VA knee examination, which considered whether his left knee condition is secondary to his service-connected right knee condition. Additionally, an April 2018 addendum to the VA knee examination was submitted addressing whether the Veteran’s left knee pain is related to service-connected left lower extremity radiculopathy or to degenerative arthritis of the lumbar spine. The VA knee examination opinions are new and when presuming the credibility, they tend to raise the possibility that the Veteran’s left knee condition may be established as secondary to his service-connected right knee disability, or secondary to his service-connected left lower extremity radiculopathy. Therefore, the new medical records relate to an unestablished fact necessary to substantiate the claim and raise a reasonable possibly that his claim can be substantiated. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for a left knee condition is reopened. REASONS FOR REMAND Entitlement to service connection for a left knee condition While the Board regrets the additional delay, the Board must remand the Veteran’s claim for service connection for a left knee condition because it finds the March 2018 VA examination to be inadequate for adjudicative purposes. Specifically, although the examiner performing the March 2018 VA examination found that the Veteran’s left knee condition is not secondary to his service-connected right knee condition, the rationale provided by the examiner is inconsistent with the medical literature used to support the conclusion. Furthermore, the April 2018 addendum opinion failed to provide an opinion as to whether the Veteran’s left knee condition is secondary to his service-connected left lower radiculopathy, rather it was merely stated that it would be mere speculation without explaining upon what basis it would be mere speculation. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted, the March 2018 examiner rested the opinion that the Veteran’s left knee condition is not secondary to his service-connected right knee condition on medical literature that explained that there is no clear literature that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless it resulted in a significant lurching gait that was present over an extended period of time. However, the examiner acknowledges that the Veteran has an altered gait and that he wears a left knee brace, but the examiner did not discuss the history and extent of the Veteran’s altered gait. The record shows that the Veteran had an altered gait, placing more weight on his left leg, due to the right knee disability, see January 26, 2007 medical note, and that the Veteran underwent a total right knee replacement in August 2012. Furthermore, the record shows that the Veteran received a left unloading knee brace in August 2016. Given that the examiner’s rationale was based on medical literature that suggests a significant abnormal gait with a major displacement of the center of gravity of the body while walking, for an extended period of time, may cause major problems on the opposite or uninjured extremity, a discussion of the history and extent of the Veteran’s altered gait is needed. The examiner also submitted an April 2018 addendum to the March 2018 VA examination opinion. The examiner was asked to address whether the Veteran’s left knee condition is related to his degenerative joint disease of the lumbar spine and/or radiculopathy of the left lower extremity. The examiner responded that a conclusion could not be made without resorting to speculation. However, the examiner did not explain why an opinion could not be made without resorting to speculation. As such, the response was inadequate. Furthermore, a secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Additional discussion in this regard is needed. See Barr, 21 Vet. App. 303, 311 (2007). Entitlement to an increased rating in excess of 30 percent for total right knee arthroplasty The Veteran contends that his right knee symptoms are sufficiently severe to warrant an increased disability rating. Specifically, he asserts that his condition is worsening, and in order to accurately assess his disability flare-ups should be considered. See April 2019 notice of disagreement. The Veteran underwent a VA right knee examination in March 2018. The Veteran’s range of motion was measured, and he performed repetitive use testing with three repetitions. However, the examiner indicated that the Veteran does not have flare-ups of the right knee, and the range of motion of the Veteran’s knee during flare-ups was not considered. Such information is needed to properly assess the severity of the Veteran’s disability, to include functional limitations during flare-ups. See 38 C.F.R. § 4.40, 4.45, 4.59. A VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, additional action is needed. The matters are REMANDED for the following action: 1. Any outstanding, relevant VA medical records should be obtained and associated with the claims file. 2. After the development directed in paragraph one has been completed to the extent possible, ask the examiner to provide an addendum opinion to the March and April 2018 medical opinions. However, if an examination is needed, as determined by the examiner, schedule the Veteran for an examination to determine the nature and etiology of the claimed left knee condition. Based on a review of the record (and examination, if deemed necessary), the examiner is asked to provide an opinion whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s diagnosed left knee condition (1) was caused by his service-connected right knee condition, service connected lumbar spine disability, or service connected left lower extremity radiculopathy; or (2) was aggravated by his service-connected right knee condition, service connected lumbar spine disability, or service connected left lower extremity radiculopathy. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule the Veteran for a VA examination, via any method deemed appropriate, to determine the current severity and manifestations of his right knee disability. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected right knee disability under the rating criteria. The examiner should comment on the functional limitations caused by flare-ups and repetitive use due to his disability. 38 C.F.R. § 4.40, 4.45, 4.59. In this regard, the examiner must indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner should inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. Such should be addressed regardless of whether the veteran is tested during a flare-up or not. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.