Citation Nr: 21069351 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-04 901 DATE: November 18, 2021 ORDER Entitlement to reopening of service connection for a right knee condition is granted. REMANDED Entitlement to service connection for a right knee condition, claimed as secondary to service-connected left knee disability, is remanded. FINDINGS OF FACT 1. Service connection for a right knee condition was denied in a June 2009 rating decision, which was not appealed. 2. Since the June 2009 rating decision, evidence has been submitted that was not previously considered by agency decisionmakers and that relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying service connection for a right knee condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence added to the record since the June 2009 rating decision is new and material, and the claim for service connection for a right knee condition is reopened. 38 U.S.C. § 5108(a) (2018); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2015 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021, and a transcript of that hearing is of record. The Veteran seeks service connection for a right knee condition secondary to his service-connected left knee disability. Prior to the present claim, a June 2009 rating decision denied the Veteran's claim for service connection for a right knee condition. This previous decision was not appealed and therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Claims denied by a final decision normally may not be reopened, but an exception exists if a claimant submits new and material evidence. 38 U.S.C. § 5108(a) (2018). "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means 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 cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). New and material evidence must "raise a reasonable possibility of substantiating the claim," a "low threshold" that "must be viewed as enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Though the January 2015 rating decision currently on appeal found new and material evidence was submitted, the Board must independently consider the issue now. The June 2009 rating decision denied the claim based on insufficient evidence that the right knee was proximately due to or aggravated by the service-connected left knee condition. Since that decision, the Veteran submitted October 2014 and June 2015 statements from his orthopedic doctor, Dr. A.S., that attribute his right knee condition to his service-connected left knee disability. Since this evidence was not previously considered by VA and relates to the unestablished element of a secondary connection to a service-connected disability, the evidence is new and material, and the claim for service connection for a right knee condition is reopened. 38 C.F.R. § 3.156 (2018); see Shade, 24 Vet. App. at 121. REASONS FOR REMAND With the claim reopened, the Board finds that remand is required in order to obtain an addendum examination and etiology opinion. Following Dr. A.S.'s October 2014 statement that the Veteran's "r[igh]t leg is a secondary injury due to overcompensation because of the left knee" and June 2015 statement that "[t]he right knee had severe degenerative arthritis due to compensatory issues from injury to the left knee," an addendum C&P opinion was obtained in August 2017. In this latter opinion, the clinician opined that there was insufficient medical literature to support that the right knee disability could be caused by compensation for the other leg. She noted that Dr. A.S. did not provide any supporting reasoning for his statement, and she quoted an article, "Symptoms in the Opposite or Uninjured Joint" from 2005, that stated "[t]he evidence indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time." In light of this opinion, the Board finds that an addendum examination and opinion is needed to address whether the Veteran's service-connected left knee disability caused a "major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). If it did, then the Veteran's case would align with the etiology process alluded to in the August 2017 opinion. The Board invites the Veteran to submit new opinions from Dr. A.S., or another clinician, that addresses the mechanism of causation or aggravation of the Veteran's right knee by his service-connected left knee disability. Such an opinion may include a statement discussing whether the Veteran's service-connected left knee caused a major displacement of his body's center of gravity with effects on the length of his right leg and gait. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination regarding the nature and etiology of his right knee condition, status post-total knee replacement. The examiner must address all of the following: (a) Either now or in the past, did the Veteran's service-connected left knee condition cause "a major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern . . . for an extended period of time"? (b) Is it at least as likely as not that the Veteran's service-connected left knee condition proximately caused the Veteran's right knee condition? (c) Is it at least as likely as not that the Veteran's service-connected left knee condition (ii) aggravated (worsened beyond the natural progression) the Veteran's right knee condition? In rendering these opinions, consider and discuss two opinions from Dr. A.S.: an October 2014 statement that the Veteran's "r[igh]t leg is a secondary injury due to overcompensation because of the left knee" and a June 2015 statement that "[t]he right knee had severe degenerative arthritis due to compensatory issues from injury to the left knee"; as well as an August 2017 C&P opinion that the medical literature is insufficient to support that "overcompensation" and/or limping due to a disability in one leg can cause or aggravate a condition in the other leg. 2. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claim. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.