Citation Nr: 21062596 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-38 745A DATE: October 8, 2021 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome (claimed as left knee condition) is granted. REMANDED Entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome is remanded. FINDING OF FACT 1. An unappealed May 2016 rating decision denied entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome. 2. Evidence added to the record since the May 2016 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome. CONCLUSION OF LAW 1. The May 2016 rating decision that denied entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied claim for entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1985 to May 2005, including service in Southwest Asia from January 1991 to May 1991 and from May 2003 to August 2004. These matters come to the Board of Veterans' Appeals (the Board) from a July 2017 rating decision in which the Agency of Original Jurisdiction (AOJ) continued its denial of entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome, which was initially denied in May 2016. The AOJ also continued the Veteran's 10 percent evaluation for left ankle osteoarthritis and tendonitis with lateral collateral/deltoid ligament and distal syndesmosis sprain with subtalar dislocation. The Veteran participated in a hearing before the undersigned Veterans Law Judge in April 2021. A transcript of this hearing is of record. The Board notes that during the April 2021 hearing, the Veteran orally withdrew his claim for entitlement to a rating in excess of 10 percent for left ankle osteoarthritis and tendonitis with lateral collateral/deltoid ligament and distal syndesmosis sprain with subtalar dislocation. However, on his August 2018 VA Form 9, the Veteran specifically appealed only the AOJ's denial of entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome. As he did not initiate an appeal of his increased rating claim to the Board, the Board does not have jurisdiction over this issue and there is nothing for the Board to dismiss. See 38 C.F.R. § 19.22. 1. The Appeal to Reopen a Previously Denied Claim for Entitlement to Service Connection for Left Knee Osteoarthritis and Patellofemoral Pain Syndrome (Claimed as Left Knee Condition) Irrespective of the AOJ's actions, it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Generally, an unappealed rating decision is final with the exception that a claim may be reopened by the submission of new and material evidence. When a veteran seeks to reopen a claim based on new and material evidence, the Department of Veterans Affairs (VA) must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must then evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In determining whether the evidence presented since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993). "New" evidence refers to evidence that was not previously submitted to VA decisionmakers. Evidence is "material" if it, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In order to reopen a claim, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a May 2016 rating decision, the AOJ denied entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome, determining that there was no in-service event, disease, or injury pertaining to the Veteran's left knee and that there was no nexus between his active military service and his current left knee osteoarthritis and patellofemoral pain syndrome. Moreover, the AOJ concluded that the Veteran's left knee osteoarthritis and patellofemoral pain syndrome were not due to Gulf War exposure; rather, they were caused by cumulative and acute traumas, such as a work injury that occurred following his military service. The Veteran did not file an appeal as to the issue of entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome. There was also no new, relevant evidence received within one year of the May 2016 rating decision. The Veteran does not argue the contrary. Accordingly, the May 2016 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the May 2016 rating decision, VA has received the following evidence: (1) various VA treatment records, (2) a June 2017 VA examination and medical opinion, (3) a July 2018 addendum medical opinion, (4) an August 2018 lay statement from D.R.H., (5) an August 2018 lay statement from R.M.J., and (6) the Veteran's April 2021 hearing testimony. This evidence is new, as it was not previously before VA at the time of the AOJ's May 2016 denial. Moreover, this evidencespecifically, the lay statements from D.R.H. and R.M.J. and the Veteran's April 2021 hearing testimonyis material. These lay statements and hearing testimony contend that the symptoms of the Veteran's left knee osteoarthritis and patellofemoral pain syndrome began during active service. As such, this evidence raises a reasonable possibility of substantiating the Veteran's claim that his current left knee osteoarthritis and patellofemoral pain syndrome are linked to his active service. Accordingly, the previously denied claim for entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome is reopened. REASONS FOR REMAND 1. Entitlement to Service Connection for Left Knee Osteoarthritis and Patellofemoral Pain Syndrome The Veteran contends that his left knee osteoarthritis and patellofemoral pain syndrome are secondary to his service-connected left ankle osteoarthritis and tendonitis with lateral collateral/deltoid ligament and distal syndesmosis sprain with subtalar dislocation. In the alternative, he asserts that his left knee osteoarthritis and patellofemoral pain syndrome began during active service. The Veteran underwent a VA examination in May 2016. A second VA examination was conducted in June 2017 and an additional clarification opinion was obtained in March 2018. However, for the reasons to follow, the Board concludes that the Veteran's claim must be remanded for an addendum medical opinion. When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, a medical examination report must contain clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examination should be based upon consideration of the Veteran's prior medical history and describe the disability and symptoms in sufficient detail to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board first finds that the March 2018 clarification opinion did not contain an adequate rationale. The examiner concluded that it is less likely than not that the Veteran's left knee osteoarthritis and patellofemoral pain syndrome were aggravated beyond their natural progression by his service-connected left ankle osteoarthritis and tendonitis with lateral collateral/deltoid ligament and distal syndesmosis sprain with subtalar dislocation. His rationale was that there is no medical evidence supporting aggravation. This rationale is conclusory and is therefore insufficient. See Stefl, 21 Vet. App. at 124. Moreover, since the opinion on aggravation was obtained in March 2018, the Court of Appeals for Veterans Claims (the Court) has clarified that a permanent worsening of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Rather, any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions, regardless of its permanence, constitutes aggravation. Ward, 31 Vet. App. at 239. As the examiner did not apply this standard in rendering his March 2018 clarification opinion, nor did he provide an adequate rationale, an addendum opinion is required to reconsider the question of aggravation. Furthermore, concerning the claim for direct service connection, the Veteran's representative contended in April 2021 that the Veteran's statements regarding the in-service onset of his left knee pain were not given adequate consideration. The Board agrees, as no VA examiner has opined on whether the Veteran's current left knee osteoarthritis and patellofemoral pain syndrome are etiologically related to his reports of in-service knee pain. An addendum opinion is necessary to address this contention as well. The matters are REMANDED for the following action: Obtain an addendum opinion from the examiner responsible for the June 2017 VA examination report. If the same examiner is not available, the request should be forwarded to an appropriate clinician. The Veteran's claims file must be made available to the examiner. After reviewing the claims file, with any necessary examination and testing, the examiner should provide the following opinions. (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee osteoarthritis and patellofemoral pain syndrome were aggravated (underwent any incremental increase in disability or any additional impairment of earning capacity, regardless of its permanence) by any of his service-connected disabilities, to include his left ankle osteoarthritis and tendonitis with lateral collateral/deltoid ligament and distal syndesmosis sprain with subtalar dislocation? Any symptoms related to his left ankle disability, such as an altered gait, must be considered and discussed. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee osteoarthritis and patellofemoral pain syndrome are etiologically related to his reports of in-service knee pain? The examiner must provide a rationale for the opinions provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.