Citation Nr: 20032376 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 18-43 756 DATE: May 7, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is considered reopened. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is considered reopened. New and material evidence having been received, the claim of entitlement to service connection for a back disability is considered reopened. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a back disability, to include dextroscoliosis of the lower thoracic and upper lumbar spine, is remanded. Entitlement to service connection for a neck or cervical spine disability, to include cervical discectomy herniated disc, status post fusion C4-C5 and C5-C6, is remanded. FINDINGS OF FACT 1. A September 2012 rating decision denied reopening a claim of service connection for ¬the bilateral knees and the thoracolumbar spine; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a right knee disability has been received since the September 2012 rating decision, and as such, the claim for entitlement to service connection for a right knee disability is reopened. 3. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a left knee disability has been received since the September 2012 rating decision, and as such, the claim for entitlement to service connection for a left knee disability is reopened. 4. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a thoracolumbar spine disability has been received since the September 2012 rating decision, and as such, the claim for entitlement to service connection for a thoracolumbar spine disability is reopened. CONCLUSIONS OF LAW 1. The September 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the September 2012 denial of reopening the claim of entitlement to service connection for a right knee disability to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. New and material evidence has been received since the September 2012 denial of reopening the claim of entitlement to service connection for a left knee disability to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 4. New and material evidence has been received since the September 2012 denial of reopening the claim of entitlement to service connection for a thoracolumbar spine disability to reopen the claim of entitlement to service connection for a thoracolumbar spine disability. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1984 to November 1987 in the United States Army. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014). “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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a February 2008 rating decision, the RO denied service connection for residuals of a bilateral knee injury and dextroscoliosis of the lower thoracic and upper lumbar spine. The Veteran did not file a notice of disagreement regarding the February 2008 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the February 2008 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Subsequently, the Veteran attempted to reopen his claims of service connection for a right knee disability, left knee disability, and thoracolumbar spine disability. The claim to reopen the issues was most recently previously denied in a September 2012 rating decision. The Veteran did not file a notice of disagreement regarding the September 2012 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the September 2012 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). 1. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is considered reopened. Evidence received since the rating decision in September 2012 includes photographs and evidence relating to the Veteran’s powerlifting during active service. He also included lay statements relating his current disabilities to injuries incurred while powerlifting that were treated off the record at the Veteran’s training and event locations. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claims for service connection for a right knee disability is reopened. 2. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is considered reopened. Evidence received since the rating decision in September 2012 includes photographs and evidence relating to the Veteran’s powerlifting during active service. He also included lay statements relating his current disabilities to injuries incurred while powerlifting that were treated off the record at the Veteran’s training and event locations. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claims for service connection for a left knee disability is reopened. 3. New and material evidence having been received, the claim of entitlement to service connection for a back disability is considered reopened Evidence received since the rating decision in September 2012 includes photographs and evidence relating to the Veteran’s powerlifting during active service. He also included lay statements relating his current disabilities to injuries incurred while powerlifting that were treated off the record at the Veteran’s training and event locations. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claim for service connection for a thoracolumbar spine disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran was afforded a VA examination in July 2018. The examiner opined that the Veteran’s bilateral knee condition was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The rationale provided stated that the disability was noted and treated several years after discharge. The examiner noted the Veteran’s complaints of knee pain documented in August 1991, but did not address that at the time of treatment, the Veteran reported a 10-year history of knee pain. At that time, the Veteran also reported treatment prior to the August 1991 record of treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds that an additional nexus opinion is necessary to address the Veteran’s reported history of pain and treatment. Additionally, as the Veteran reported treatment by a private physician prior to the August 1991 recorded diagnosis, VA should obtain authorization and request these records. 2. Entitlement to service connection for a left knee disability is remanded. Please see the analysis in Remand Section 1, above. 3. Entitlement to service connection for a back disability, to include dextroscoliosis of the lower thoracic and upper lumbar spine, is remanded. The Board notes that the examiner only addressed the Veteran’s dextroscoliosis but did not address his diagnosis of degenerative disc disease of the lumbar spine. The Board finds that an additional nexus opinion is necessary to address the direct service connection claim related to his degenerative disc disease. Additionally, the Veteran reported subjective worsening of his back pain after his knee surgery. A secondary opinion should be obtained in the event service-connection is granted for a knee disability. 4. Entitlement to service connection for a neck or cervical spine disability, to include cervical discectomy herniated disc, status post fusion C4-C5 and C5-C6, is remanded. The Board notes that the July 2018 examiner did not consider the Veteran’s lay statements regarding his neck pain being caused by his heavy backpack in-service. The Veteran has also contended that he was a power-lifter during service, documented in an August 1986 service treatment record which indicates that he had muscle pain from doing squats with weights. Additionally, the Veteran indicated in an August 2016 VA treatment note that he had cervical fusion in the early 1990s. The Veteran should be requested to submit or submit information concerning any relevant private treatment and another VA opinion should be obtained which considers the Veteran’s contentions regarding his cervical spine disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private medical provider referred to in his August 1991 treatment record as well as any other private treatment for his claimed disabilities. Make two requests for the authorized records from any indicated provider, unless it is clear after the first request that a second request would be futile. 2. Obtain opinions from an appropriate medical professional regarding the Veteran’s claims on appeal. If and only if the medical professional deems an in-person examination is necessary should one be scheduled. Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinion: a.) Whether the Veteran’s right or left knee disability is at least as likely as not causally related to his active service, to include powerlifting during service. The examiner should specifically address the August 1991 treatment record showing a history of 10 years of pain with previous treatment for knee complaints. The examiner should also address the Veteran’s statements regarding his training and power-lifting competitions. b.) Whether the Veteran’s back disabilities, to include of the cervical or thoracolumbar spine, are at least as likely as not causally related to his active service, to include powerlifting during service and carrying heavy backpacks. The examiner should address diagnoses other than scoliosis such as degenerative disc disease or herniated discs. The examiner should also specifically address the Veteran’s statements regarding his training and power-lifting competitions. c.) Whether the Veteran’s back disabilities are proximately due to or aggravated beyond their natural progression by the Veteran’s right or left knee disabilities. The examiner should address the Veteran’s medical records indicating a subjective worsening of back pain after undergoing knee surgery. (Continued on the next page)   A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, 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.