Citation Nr: 21066727 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-08 721 DATE: November 2, 2021 ORDER The petition to reopen a claim for service connection for a left knee condition is granted. REMANDED Service connection for a left knee condition, to include as secondary to right knee replacement is remanded. Entitlement to a temporary total evaluation based on convalescence following surgery for left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT 1. A February 2010 rating decision denied service connection for a left knee condition; the Veteran did not appeal the decision, and new and material evidence was not received within one year of notice of its issuance. 2. The evidence received since the February 2010 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 claim of entitlement to service connection for a left knee condition. CONCLUSION OF LAW The criteria to reopen a claim for service connection for a left knee condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, the Veteran requested a Board hearing before a Veterans Law Judge. However, he failed to report for the Board videoconference hearing scheduled for him in August 2019. The Board did not receive a timely request for postponement, and the Veteran has not indicated that he wished to reschedule the hearing. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704 (d). 1. The petition to reopen a claim for service connection for a left knee condition is granted. The Veteran seeks to reopen a claim for service connection for a left knee condition. Generally, a previously denied claim in an unappealed Board decision or an unappealed agency of original jurisdiction 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 is defined as existing evidence not previously submitted to VA; material evidence is defined as 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. 38 C.F.R. § 3.156 (a); see Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). Service connection for a left knee condition was previously denied in a February 2010 rating decision because the available evidence did not show a left knee condition was incurred in or caused by service. The Veteran was notified of the decision and his appellate rights in a February 2010 correspondence. The Veteran did not file a notice of disagreement; however, a VA right knee examination was associated with the record in May 2010. The Board notes the VA examination did not pertain to causal nexus and is not considered material. As new and material evidence was not received, the February 2010 rating decision became final. In September 2014, the Veteran sought to reopen his claim for service connection for a left knee disability, to include as due to his service-connected right knee disability. In the February 2015 rating decision currently on appeal, the RO reopened the Veteran's claim on the basis of new and material evidence but denied entitlement to service connection on the merits. Evidence received since the February 2010 rating decision includes VA and private treatment records, Social Security Administration records, a February 2015 VA examination and nexus opinion, and a September 2021 appellate brief that includes argument and medical literature excerpts to support causal nexus. As this evidence was not previously considered by the RO, it is considered new. Moreover, because the examination report and excerpts of the treatise evidence relates to nexus, this evidence is considered material. Accordingly, new and material evidence has been received, and the claim is reopened. REASONS FOR REMAND 1. Service connection for a left knee condition, to include as secondary to right knee replacement is remanded. The Veteran seeks entitlement to service connection for a left knee condition, to include as secondary to his service-connected right knee replacement. An addendum opinion must be obtained so that the Board can make a fully-informed decision on the issue of entitlement to service conection. A VA examination and opinion was obtained in February 2015 regarding the nature and etiology of the Veteran's left knee disability. In providing a negative nexus opinion, the examiner opined that the Veteran's left knee condition was less likely than not proximately due to or the result of his right knee condition because there is no gait disturbance or abnormal weight bearing of sufficient severity to implicate the right knee condition is the cause for his current left knee condition, which is most likely due to typical wear and tear over time. However, the examiner did not opine on aggravation, which must be discussed to resolve secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, on remand, an addendum opinion must be obtained. Moreover, in the representative's September 2021 appellate brief, additional argument was provided with respect to the examiner's opinion regarding the impact, or lack thereof, of the asserted gait changes due to the service-connected right knee disability. The representative also provided excerpts from medical articles/studies obtained from the internet. He is invited to provide the full and complete articles and/or studies for consideration by an examiner on remand. The Board finds that a nexus opinion regarding direct service connection is necessary. In the 'Medical History' section of the February 2015 examination report, the examiner included a summary describing the history (onset and course) of the Veteran's left knee disability. The examiner stated the "Veteran had the gradual onset of left knee pain over the course of duty due to repetitive overuse injuries. Received no treatment other than medications. He has had progressively increasing pain ever since." This raises a question of direct service connection. [Parenthetically, the Board observes that in an April 2013 VA examination for the right knee disability, another VA examiner indicated that the Veteran had 'knee osteoarthritis due to aging.' In an addendum report dated later that month, the examiner noted that he had since received and reviewed the service treatment records, but did not locate documentation of persistent abnormality in either knee in the service records.] The RO also addressed a theory of direct service connection in both the February 2015 rating decision and January 2017 statement of the case. Hence, the Board should as well. To this end, an opinion regarding whether the left knee disability was incurred in or as a result of service was not provided. On remand, such an opinion (supported with rationale) should be obtained. 2. Entitlement to a temporary total evaluation based on convalescence following surgery for left knee disability is remanded. 3. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran seeks entitlement to a temporary total evaluation based on convalesence following surgery for his left knee disability. He also seeks entitlement to a total disability raitng based on individual unemployability (TDIU). Because a decision on the remanded issue of service connection for a left knee disability could significantly impact a decision on the issues of entitlement to a temporary total evaluation and a TDIU, the issues are inextricably intertwined. A remand of the claims for a temporary total evaluation and a TDIU is required. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and invite them to submit the full and complete text of the medical treatise evidence obtained from the internet that were included as excerpts in the September 2021 appellate brief, so that an examiner may have the opportunity to review them in their entirety. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current left knee disability is at least as likely as not: (a) related to service, (including due to repetitive overuse injuries during service); or (b) proximately due to his service-connected right knee disability; or (c) aggravated beyond its natural progression by his service-connected right knee disability. The examiner must provide a rationale for each opinion. In formation of the opinions and supporting clinical rationale, the examiner must consider the following: (a) the Veteran's 2015 assertion that he experienced a gradual onset of left knee pain over the course of duty due to repetitive overuse injuries and has had progressively increasing pain ever since; and, (b) the arguments raised within the September 2021 appellate brief regarding the Veteran's gait; and, (c) the excerpts from the medical literature provided in the September 2021 appellate brief, and if provided by the Veteran or his representative, the complete text of the referenced medical treatise evidence/internet articles. Finally, the examiner should consider the Veteran's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported overuse injury and pain symptoms in service and thereafter represented the onset of his current left knee disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed left knee disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.