Citation Nr: 21064563 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-24 689 DATE: October 20, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a left hip disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a left knee disability is granted. Entitlement to an earlier effective date for the award of a 40 percent rating for tear of the quadriceps femoris muscle, left thigh, is denied. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to service-connected tear of quadriceps femoris muscle, left thigh, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected tear of quadriceps femoris muscle, left thigh, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a decision issued in May 2006, the Board of Veterans' Appeals (Board) denied service connection for a left hip disorder and a left knee disorder. The Veteran did not appeal the Board's decision and no new and material evidence was received within the appeal period. 2. The evidence since the May 2006 Board decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claims of service connection for a left hip disability and a left knee disability. 3. The Veteran's claim for an increased rating for tear of the quadriceps femoris muscle, left thigh, was received by VA on August 24, 2016, and the preponderance of the evidence weighs against finding that a cognizable increase in his disability occurred during the year immediately preceding his increased rating claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for a left hip disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the claim of service connection for a left knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for an effective date prior to August 24, 2016 for the award of a 40 percent rating for tear of the quadriceps femoris muscle, left thigh, have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1979 to February 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in April 2017 and June 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2021 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. 1. Whether new and material evidence has been submitted to reopen the previously-denied claim of service connection for a left hip disability 2. Whether new and material evidence has been submitted to reopen the previously-denied claim of service connection for a left knee disability Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the Veteran's claims of service connection for a left hip disability and a left knee disability were denied in a May 2006 Board decision because the evidence failed to indicate that his disabilities are related to his active duty service or secondary to his service-connected thigh muscle tear disability. The relevant evidence of record at the time of the May 2006 decision consisted of the claim form; service treatment records; VA and private treatment records; a private medical opinion dated in July 1999 from W.H.S., Jr., M.D.; and VA medical examinations and opinions dated in April 1988, May 1989, March 1997, July 1999, March 2000, and January 2005. Since the May 2006 Board decision, additional treatment records and the January 2021 hearing transcript have been added to the claims file. The Board finds that this evidence is both new and material. See 38 U.S.C. § 5108. The evidence is new, as it was not part of the record at the time of the May 2006 Board decision. It is also material, as it relates to unestablished facts necessary to substantiate the Veteran's claims. Specifically, the Veteran testified that he first experienced left hip and knee pain soon after his in-service thigh injury and continued to have hip and knee problems during his service and within one year of separation from service. Accordingly, as new and material evidence has been submitted, the claims of service connection for left hip and left knee disabilities are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. Entitlement to an earlier effective date for the award of a 40 percent rating for tear of the quadriceps femoris muscle, left thigh Under the general rule, the effective date of a rating increase is the date of receipt of the claim or the date entitlement to the increase arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F. R. § 3.400(o)(1). The general rule thus precludes an award of an effective date that is earlier than the date of application for the increased rating. Under an exception, however, the effective date of an increase will be the earliest date as of which it is factually ascertainable from all evidence of record that an increase in disability had occurred, provided that a complete claim or an intent to file a claim is received within one year from that date. 38 U.S.C. § 5110(b)(3); 38 C.F. R. § 3.400(o)(2); see Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). A cognizable increase under this exception is an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). The disability must be shown to have increased during the one year immediately preceding the filing of the claim rather than only earlier. Gaston v. Shinseki, 605 F.3d 979, 980 (2010). For medical records (reports of examination, hospitalization, or medical treatment) to be considered, a complete claim or a statement of intent to file a claim must be received within one year from the date of the medical record. See 38 C.F. R. § 3.400(o)(2). In this case, the Board finds that an effective date earlier than August 24, 2016 is not warranted for the award of a 40 percent rating for the Veteran's service-connected tear of quadriceps femoris muscle, left thigh. His claim for an increased rating was received by VA on August 24, 2016. In the April 2017 rating decision, the RO granted a 40 percent disability rating and assigned an effective date of August 24, 2016 for the increased evaluation. A review of the claims file did not reveal any VA or private treatment records indicating an increase in disability level in the year immediately preceding the Veteran's increased rating claim. Therefore, the effective date of his increased evaluation is the date his claim was received by VA, and an effective date prior to August 24, 2016 is not warranted. See 38 U.S.C. § 5110; 38 C.F. R. § 3.400(o); Rice, 22 Vet. App. at 454. In so finding, the Board notes that earlier provisions allowing for consideration of informal claims no longer apply. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability, to include as secondary to service-connected tear of quadriceps femoris muscle, left thigh, is remanded. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected tear of quadriceps femoris muscle, left thigh, is remanded. As indicated above, the Veteran has presented new and material evidence to reopen his claims of service connection for disabilities of the left hip and left knee. This evidence was not available to previous VA examiners, and his testimony regarding the onset of his hip and knee problems is relevant to a determination of whether his disabilities are related to his service. In addition, the most recent VA examination of record, conducted in January 2005, includes an opinion on secondary service connection but not address direct service connection. Accordingly, new VA examinations are warranted for both claims. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran has asserted that he is unemployable as a result of his left knee, hip, and thigh disabilities. His only current service-connected disability is tear of quadriceps femoris, left thigh, and it has been assigned a 40 percent rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5314. Thus, he does not currently meet the schedular threshold for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, the outcomes of his pending claims of service connection for disabilities of the left knee and left hip will directly affect whether he meets the schedular TDIU criteria. Therefore, his TDIU claim is inextricably intertwined with his claims of service connection for disabilities of the left hip and left knee. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Consequently, the claim for entitlement to a TDIU must be remanded. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from November 2018 to the present. 2. After completing #1 schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left hip disabilities. A complete copy of the claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For each left hip disability found on examination, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left hip disability was incurred during his active duty service or is caused by an in-service injury, illness, or event? (b.) The medical evidence indicates that the Veteran has left hip arthritis. Is it at least as likely as not (a 50 percent or greater probability) that his arthritis manifested itself to a compensable degree within one year of his separation from active duty service? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left hip disability was caused and/or aggravated (any incremental increase in disability) by his service-connected tear of quadriceps femoris muscle, left thigh? (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left hip disability prior to aggravation? If so, please identify. If multiple left hip disabilities are present on examination, the examiner must provide a separate etiology opinion for each disability. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completing #1 schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left knee disabilities. A complete copy of the claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For each left knee disability found on examination, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee disability was incurred during his active duty service or is related to an in-service injury, illness, or event? (b.) The medical evidence indicates that the Veteran has left knee arthritis. Is it at least as likely as not (a 50 percent or greater probability) that his arthritis manifested itself to a compensable degree within one year of his separation from active duty service? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee disability was caused and/or aggravated (any incremental increase in disability) by his service-connected tear of quadriceps femoris muscle, left thigh? (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left knee disability prior to aggravation? If so, please identify. If multiple left knee disabilities are present on examination, the examiner must provide a separate etiology opinion for each disability. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completing #1 through #3, readjudicate the issues on appeal, including entitlement to a TDIU. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case (SSOC) and provide them an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.