Citation Nr: 21066624 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-40 401 DATE: November 1, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee condition is reopened. REMANDED Entitlement to service connection for a bilateral knee condition, to include as due to service-connected bilateral feet disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) on an extraschedular basis prior to September 18, 2017 is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, the Regional Office denied the Veteran's claim of entitlement to service connection for a right knee condition; the Veteran did not submit a notice of disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. In an August 2011 rating decision, the Regional Office denied the Veteran's claim of entitlement to service connection for a left knee condition; the Veteran did not submit a notice of disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 3. The evidence received since the September 2010 and August 2011 rating decisions is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral knee condition. CONCLUSIONS OF LAW 1. The September 2010 rating decision that denied the claim of entitlement to service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302, 20.1103. 2. The August 2011 rating decision that denied the claim of entitlement to service connection for a left knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302, 20.1103. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee condition. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1974 to May 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2016 and December 2017 by Department of Veterans Affairs (VA) Regional Offices. In July 2021, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156 (a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the reasons below, the Board finds that new and material evidence was received to reopen the claim of entitlement to service connection for a bilateral knee condition. The Veteran first sought entitlement to service connection for his right knee in March 2010. In a September 2010 rating decision, the claim was denied on the basis that there was no link between his diagnosed right knee degenerative joint disease and his military service. The Veteran did not appeal this decision, and it became final. 38 U.S.C. § 7105. As for the Veteran's left knee, he initially sought service connection in September 1997. In a February 1998 rating decision, that claim was denied, as there was no evidence of a disability of the left knee which could be linked to his military service. Subsequently, rating decisions and/or statements of the case issued in August 1999, June 2000, July 2002, August 2004, March 2006 and August 2011 continued to deny service connection for a left lower extremity condition that included the left knee. The most recent decision, in August 2011, denied the Veteran's claim of entitlement to service connection based on the fact that no new and material evidence had been submitted since the previous final decision, in March 2006, which denied service connection based on a lack of nexus to service. The Veteran did not appeal the August 2011 decision and it became final. 38 U.S.C. § 7105. In August 2017, the Veteran sought to reopen his claim, now styled as one for service connection for a bilateral knee condition. Pertinent evidence added to the record since the previous final decisions includes VA treatment records, private treatment records, the Veteran's testimony before the Board in July 2021, and the report of VA examinations related to the Veteran's claims of entitlement to service connection for disabilities of the bilateral feet, all of which suggest a possible link between the Veteran's service-connected foot disabilities and a bilateral knee condition. At the time of the previous rating decisions, there was no such suggestion of a nexus to the Veteran's military service, to include on a secondary basis. Since the newly submitted evidence suggests such a link, the Board finds that new and material evidence sufficient to reopen the claim and obtain an examination has been submitted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Shade, supra; 38 C.F.R. § 3.159 (c)(4)(i). Therefore, the claim of entitlement to service connection for a bilateral knee condition is reopened. REASONS FOR REMAND Bilateral knee condition In a May 2020 Board decision, service connection was granted for a left foot disability. In an October 2020 rating decision, service connection was granted for degenerative arthritis of the right foot. At his July 2021 hearing, the Veteran explained through his attorney that VA examinations in September 2009 and March 2010 show that the Veteran experienced an abnormal gait due to his feet and asserted that such gait caused him to develop his subsequent bilateral knee condition. The record shows that the Veteran has been diagnosed with mild arthritis in the left knee and degenerative joint disease of the right knee. As noted above, the Board has found that the evidence of record suggests a possible nexus between the Veteran's bilateral knee conditions and his military service, to include as secondary to service-connected feet disabilities. Thus, a VA examination to address such a link is necessary to decide the claim. See McLendon, supra. TDIU The Veteran asserts that his service-connected disabilities have prevented him from working, warranting a TDIU. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran was granted a 100 percent disability rating for service-connected bilateral hearing loss, effective September 18, 2017. Prior to that date, his combined rating was 30 percent until January 29, 2010, and 40 percent thereafter, for his service-connected bilateral foot disabilities. At his July 2021 hearing, he testified that he worked as driving instructor but found it difficult to continue driving, and thus teaching, due to his service-connected disabilities, specifically his feet. He described left foot swelling that interfered with walking and engaging a clutch. In addition, he reported that the medication he took to treat his foot pain prevented him from operating vehicles. In a June 2021 assessment, a vocational consultant concluded that, prior to September 17, 2017, the Veteran was unable to secure and follow any substantially gainful employment due to his service-connected disabilities. She noted that his ankle conditions contributed to his inability to work. Therefore, the evidence suggests that the Veteran was unable to work, prior to September 17, 2017, due to service-connected disabilities which did not meet the schedular threshold for TDIU. Since the Board cannot decide extraschedular TDIU claims in the first instance, it must first refer the case to the Compensation Service Director for consideration of extraschedular TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001); Barringer v. Peake, 22 Vet. App. 242 (2008). The matters are REMANDED for the following action: 1. Forward the record to a VA clinician for a medical opinion addressing the etiology of the Veteran's bilateral knee condition. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner is asked to identify all current knee diagnoses, and then, with regard to each, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the diagnosed knee condition is caused or aggravated by his service-connected left foot pes planus with arthritis, or degenerative arthritis of the right foot. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. Refer this case to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis, prior to September 18, 2017, pursuant to 38 C.F.R. § 4.16 (b). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.