Citation Nr: 21065336 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 21-00 725 DATE: October 25, 2021 ORDER The request to reopen the claim of entitlement to service connection for left knee arthritis is granted. The request to reopen the claim of entitlement to service connection for lumbar spine degenerative arthritis is granted. Entitlement to service connection for left knee arthritis is granted. Entitlement to service connection for lumbar spine degenerative disease is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. In a March 2016 rating decision, the Veteran was denied service connection for left knee arthritis on the basis that the evidence did not reflect his disability was related to service or his service-connected right knee disability. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was new and material evidence received within one year. Therefore, the decision is final. 2. In a March 2017 rating decision, the Veteran was denied service connection for lumbar spine degenerative arthritis on the basis that evidence did not reflect his disability was related to service or his service-connected right knee disability. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was new and material evidence received within one year. Therefore, the decision is final. 3. In an October 2018 statement, the Veteran reported that he had knee and back issues ever since his time in service, when he would jump and slide down ladder wells with a hard landing. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service for both the Veteran's left knee arthritis and lumbar spine degenerative arthritis. 4. The Veteran's left knee arthritis is due, at least in part, to his service-connected right knee disability. 5. The Veteran's lumbar spine degenerative disease is due, at least in part, to his service-connected right knee disability. 6. The Veteran's bilateral lower extremity radiculopathy is due to his lumbar spine degenerative disease. CONCLUSIONS OF LAW 1. The March 2016 rating decision, to the extent that it denied service connection for left knee arthritis, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2021). 2. The evidence received since the March 2016 rating decision, which denied service connection for left knee arthritis, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 3. The March 2017 rating decision, to the extent that it denied service connection for lumbar spine degenerative arthritis, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2021). 4. The evidence received since the March 2017 rating decision, which denied service connection for lumbar spine degenerative arthritis, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 5. The criteria for entitlement to service connection for left knee arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). 6. The criteria for entitlement to service connection for lumbar spine degenerative disease have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). 7. The criteria for entitlement to service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). 8. The criteria for entitlement to service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy on active duty from October 1962 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2018 and December 2018 rating decisions by the Department of Veterans Affairs (VA). The Board has interpreted the Veteran's January 2019 notice of disagreement (NOD) to constitute disagreement with an April 2018 rating decision wherein the Agency of Original Jurisdiction (AOJ) denied service connection for a left knee disability, because the NOD was received within one year of that decision. Although the AOJ reopened the claims of service connection for left knee arthritis and lumbar spine degenerative arthritis, the question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issues accordingly. The request to reopen the claims of service connection for left knee arthritis and lumbar spine degenerative arthritis have been granted for the reasons stated above. Those issues will not be discussed further herein. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issues of service connection for left and right sciatica to encompass any lower extremity radiculopathy. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is service-connected for right knee degenerative joint disease, status post medial meniscectomy. 1. Entitlement to service connection for left knee arthritis. The Veteran is diagnosed with left knee arthritis. See, e.g., September 2017 VA examination. A few years after service, the Veteran reported a history of knee pain beginning during service. See February 1977 private treatment records. His left knee showed degenerative arthritis at least as of 1979. See November 1979 private treatment records. He recently reported that he is constantly putting more pressure on his left knee to try and ease the pain on his right knee; as a result, his left knee was now "giving out." See, e.g., December 2015 statement. In November 2015, a private physician opined it was more likely than not that the Veteran's left knee arthritis was secondary to his service-connected right knee disability. The physician discussed that the medical literature supports a nexus as it has been established that traumatic injuries like that experienced by the Veteran often set off immunological reactions resulting in the onset of osteoarthritis. The Board finds this medical opinion to be adequate for appellate review. The physician relied on a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran's diagnosed disability of record and lay statements of reported history. March 2016, December 2018, and May 2021 VA examiners opined that it was less likely than not that the Veteran's left knee disability was related to his service-connected right knee disability. However, the March 2016 VA examiner relied on the absence of evidence while also stating that the private opinions of record were not 'main[]stream,' and the December 2018 VA examiner solely relied on medical literature and the absence of any new evidence. While the May 2021 VA examiner discussed the Veteran's post-service history as a police officer, the examiner still ultimately relied solely on the absence of evidence in medical literature, without discussing the private positive medical opinion. As a result, all three VA opinions are considered inadequate and given no probative weight. Because the probative medical evidence reflects that the Veteran's left knee arthritis is caused, at least in part, by his service-connected right knee disability, service connection is warranted. 2. Entitlement to service connection for a lumbar spine disability. The Veteran is diagnosed with lumbar spine degenerative joint disease and degenerative disc disease. See, e.g., March 2016 VA examination. He was first diagnosed in approximately 2009, see May 2021 VA examination, and reported that his compensation for his service-connected right knee disability has resulted in symptoms associated with his back. See, e.g., December 2015 statement. In November 2015, a private physician opined it was more likely than not that the Veteran's lumbar spine degenerative disease was secondary to his service-connected right knee disability. The physician discussed that the medical literature supports a nexus as it has been established that traumatic injuries like that experienced by the Veteran often set off immunological reactions resulting in the onset of osteoarthritis. The Board finds this medical opinion to be adequate for appellate review. The physician relied a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran's diagnosed disability of record and lay statements of reported history. March 2016 and May 2021 VA examiners opined that it was less likely than not that the Veteran's lumbar spine disability was related to his service-connected right knee disability. However, the March 2016 VA examiner relied on the absence of evidence while also stating that the private opinions of record were not 'main[]stream.'. While the May 2021 VA examiner discussed the Veteran's post-service history as a police officer, the examiner still ultimately relied solely on the absence of evidence in medical literature, without discussing the private positive medical opinion. As a result, both VA opinions are considered inadequate and given no probative weight. Because the probative medical evidence reflects that the Veteran's lumbar spine degenerative disease is caused, at least in part, by his service-connected right knee disability, service connection is warranted. 3. Entitlement to service connection for bilateral lower extremity radiculopathy. The Veteran is diagnosed with bilateral lower extremity radiculopathy associated with his lumbar spine degenerative disease. See May 2021 VA examination; August 2018 private Back Conditions Disability Benefits Questionnaire. As above, service connection for a lumbar spine disability has now been granted, as a result, service connection for bilateral lower extremity radiculopathy is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral lower extremity peripheral neuropathy. While the Veteran does have diagnoses of neuropathy, see July 2018 private records, it's unclear if he has a separate disability from his service-connected radiculopathy. His private physician noted that the Veteran has "neurologic abnormalities" associated with his back and knee. See August 2018 private opinion. Because there are medical questions outstanding, remand for an examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that the Veteran asserts his lower extremity peripheral neuropathy is related to exposure to herbicide agents during service. His military personnel records repeatedly show combat service for purposes of the Vietnam Service Medal. See, e.g., July 1966 personnel records. However, it is unclear whether he served within the 12 nautical mile territorial sea of the Republic of Vietnam. See 38 U.S.C. § 1116A. If the Veteran has separately diagnosed neuropathy, the AOJ should determine whether the Veteran was presumptively exposed to herbicide agents during service. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from August 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any bilateral lower extremity peripheral neuropathy. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Does the Veteran have bilateral lower extremity peripheral neuropathy that is a separate disability from his service-connected bilateral lower extremity radiculopathy? Please explain why. (b.) If bilateral lower extremity peripheral neuropathy is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner should presume herbicide agent exposure in service for purposes of this opinion only. The Board is not conceding herbicide agent exposure. 3. If a VA examiner diagnoses peripheral neuropathy separate from the Veteran's service-connected radiculopathy, the AOJ should consult the appropriate resources to determine whether the Veteran is presumptively exposed to herbicide agents during service, to include exposure within the 12 nautical mile territorial sea of the Republic of Vietnam. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.