Citation Nr: 21004380 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-12 333 DATE: January 27, 2021 ORDER New and material evidence having been received, the petition to reopen the claims for entitlement to service connection for a left and right knee condition is granted. New and material evidence having been received, the petition to reopen the claims for entitlement to service connection for a left and right hip condition is granted. REMANDED Entitlement to service connection for left hand condition is remanded. Entitlement to service connection for a left and right knee (bilateral knee) condition is remanded. Entitlement to service connection for a left and right hip (bilateral hip) condition is remanded. FINDINGS OF FACT 1. A January 2016 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for a bilateral knee condition and a bilateral hip condition based on findings that the conditions were caused by either his active duty military service or his service-connected foot condition. The Veteran did not appeal this decision or submit new and material evidence within one year of the denial. 2. The evidence added to the record since the January 2016 rating decision is not cumulative or redundant of the record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims. CONCLUSIONS OF LAW 1. The January 2016 rating decision denying entitlement to service connection for a bilateral knee condition and a bilateral hip condition is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the previously denied claims of service connection for a bilateral knee condition and a bilateral hip condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from September 1965 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in December 2020. A transcript of this hearing has been associated with the record. New and Material Evidence Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 means existing evidence not previously submitted to agency decisionmakers. 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. 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(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of what action was taken by the AOJ, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. § 5108. 1. & 2. New and material evidence having been received, the petition to reopen the claims for entitlement to service connection for a bilateral knee condition and a bilateral hip condition is granted. The Veteran submitted initial claims for service connection for a bilateral knee condition and a bilateral hip condition in September 2015. In connection with his claims, the AOJ obtained service treatment records, a VA examination, and post-service treatment records. The claims were denied in a January 2016 rating decision and the Veteran did not appeal this decision. The Veteran later submitted petitions to re-open his claims for service connection in February 2017. The AOJ subsequently issued a rating decision in April 2017, where the AOJ indicated that the claims remained denied because the evidence submitted was not found to be new and material. This is the last final denial of the claims. The Veteran then filed a notice of disagreement (NOD) in September 2017 and timely appealed these matters to the Board. The Board finds that the evidence received since the January 2016 rating decision is, in fact, new and material. Specifically, the evidence includes post-service VA treatment records for the Veteran's conditions, a private treatment record addressing the issue of a nexus between the Veteran’s knee and hip conditions and his other service-connected conditions, as well as new testimony, contentions, and theories of entitlement from the Veteran regarding his disabilities. See e.g., April 15, 2019 private treatment record; December 2020 Hearing Transcript (wherein the Veteran testified that his primary care physician opined that his hip conditions were affected as a result of the way that he walks on the outside of his feet so as to not aggravate his service-connected foot disability). The Board finds that the evidence added to the record since the last final denials in the January 2016 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims. Consequently, the Board finds that new and material evidence has been received to re-open the previously denied claims of entitlement to service connection for a bilateral knee condition and entitlement to service connection for a bilateral hip condition. REASONS FOR REMAND 1. Entitlement to service connection for a left hand condition is remanded. The Veteran contends that he has a current left hand disability that is related to his active duty military service. Specifically, the Veteran asserts that during service, he suffered a fall during which he injured and broke his left hand. The Veteran asserts that since this injury during service, he has experienced residuals of the injury to include pain, limited dexterity, and numbness. See e.g., June 2018 correspondence; December 2020 Board Hearing transcript. In support of the claim, he has submitted a comprehensive lay statement detailing his injury during service, as well as a lay statement from his spouse, who corroborated the Veteran’s assertions. Additionally, during the December 2020 virtual Board hearing, he competently and credibly testified to these events that occurred while he was in service. Further, he submitted a photograph of himself in service uniform with his left arm in a cast and sling. See June 2018 correspondence, page 2. The Board finds that examining the evidence in its totality, there is competent, credible evidence that the Veteran did suffer a broken left hand during his active duty service. To date, he has not been afforded a VA examination with respect to this claim, to determine whether he has a current disability associated with the in-service break. As the McLendon elements necessitating a VA examination have been met, a remand is necessary to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. & 3. Entitlement to service connection for a bilateral knee condition and entitlement to service connection for a bilateral hip condition are remanded. The Veteran contends that both his bilateral knee condition and bilateral hip conditions are due to service, or alternatively, that they are secondary to his newly service-connected bilateral ankle condition and/or his service-connected foot condition. See e.g., December 2020 Board Hearing transcript. The Veteran was afforded a VA examination in conjunction with his claim for his knees and hips in November 2015. However, the VA examiner only addressed the Veteran’s service-connected foot condition, and specifically, whether the Veteran’s service-connected foot condition caused Veteran’s current bilateral knee and bilateral hip disability. The Court of Appeals for Veterans Claims has made it clear that an opinion will be considered inadequate unless it addresses both the "caused by" and "aggravation" avenues for secondary service-connection claims. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Additionally, during the pendency of this appeal, the Veteran has also been service-connected for a bilateral ankle disability which he asserts may also have caused or aggravated his current bilateral knee and hip conditions. Therefore, the Board finds that a remand is necessary to obtain an opinion as to whether the Veteran's current bilateral knee and hip conditions are at least as likely as not caused or aggravated by the Veteran's service-connected foot condition AND/OR the Veteran’s service-connected bilateral ankle disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his current left hand disability, including residuals of a broken bone. After reviewing the record, the VA examiner should: (a.) Determine what, if any, current diagnoses for the Veteran’s left hand are found to be present during the appeal period beginning September 2015. (b.) For each diagnosed disorder or disability, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability is caused by or is otherwise related to the Veteran’s active duty service, to include his in-service injury of his left hand. The examiner is specifically directed to the Veteran’s lay statements regarding this injury during his military service. See VBMS, document labeled Hearing Transcript, receipt date 12/01/2020, pages 1-9 of 25; see also VBMS, document labeled Correspondence, receipt date 06/14/2018, pages 1-2 of 2. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions (e.g., his hearing testimony and photos, which the Board finds credible on the issue of an in-service break) must be considered and weighed in making the determination as to whether a nexus exists between the current disorders and service. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Obtain an addendum opinion from an appropriate clinician to address whether the Veteran's bilateral knee disability is at least as likely as not (i) caused by or (ii) aggravated by his service-connected foot condition AND/OR his service-connected bilateral ankle disabilities. Aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. 3. Obtain an addendum opinion from an appropriate clinician to address whether the Veteran's bilateral hip disability is at least as likely as not (i) caused by or (ii) aggravated by his service-connected foot condition AND/OR his service-connected bilateral ankle disabilities. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.