Citation Nr: 21073385 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-54 226 DATE: December 8, 2021 ORDER New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for a right knee disability, secondary to the service connected left ankle disability. New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for a left knee disability, secondary to the service connected left ankle disability. New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for a lower back disability, secondary to the service connected left ankle disability. REMANDED Entitlement to a rating in excess of 10 percent for a service-connected left ankle disability is REMANDED. Entitlement to service connection for a right knee disability, secondary to the service-connected left ankle disability, is REMANDED. Entitlement to service connection for a left knee disability, secondary to a service-connected left ankle disability, is REMANDED. Entitlement to service connection for a lower back disability, secondary to a service-connected left ankle disability, is REMANDED. Entitlement to service connection for a right ankle disability, secondary to a service-connected left ankle disability, is REMANDED. FINDINGS OF FACT 1. An October 2009 rating decision denied the Veteran's claim for service connection for a right knee disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the October 2009 rating decision, for the Veteran's claim for service connection for a right knee disability, is neither cumulative nor repetitive of facts that were previously considered. 3. An October 2009 rating decision denied the Veteran's claim for service connection for a left knee disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 4. The evidence received since the October 2009 rating decision, for the Veteran's claim for service connection for a left knee disability, is neither cumulative nor repetitive of facts that were previously considered. 5. An October 2009 rating decision denied the Veteran's claim for service connection for a lower back disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 6. The evidence received since the October 2009 rating decision, for the Veteran's claim for service connection for a lower back disability, is neither cumulative nor repetitive of facts that were previously considered. CONCLUSIONS OF LAW 1. The October 2009 rating decision that denied the Veteran's claim for service connection for a right knee disability is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the October 2009 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for a right knee disability. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 3. The October 2009 rating decision that denied the Veteran's claim for service connection for a left knee disability is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 4. Following the October 2009 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for a left knee disability. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 5. The October 2009 rating decision that denied the Veteran's claim for service connection for a lower back disability is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 6. Following the October 2009 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for a lower back disability. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from November 1983 to September 1985. New and Material Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim that has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For evidence to be new, the evidence must not previously have been submitted to agency decision makers. For evidence to be material, it must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant to 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). 1. New and material evidence has been submitted sufficient to reopen a claim for service connection for a right knee disability, secondary to the service connected left ankle disability. 2. New and material evidence has been submitted sufficient to reopen a claim for service connection for a left knee disability, secondary to the service connected left ankle disability. 3. New and material evidence has been submitted sufficient to reopen a claim for service connection for a lower back disability, secondary to the service connected left ankle disability. In October 2009, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied the Veteran's claims for service connection for bilateral knee and lower back disabilities. The AOJ found that the evidence did not support the conclusion that the bilateral knee and lower back disorders were related to the Veteran's service-connected left ankle disability / status post-rupture achilles tendon. In April 2018, the AOJ issued a rating decision. Therein, the AOJ continued the previous denials for service connection for bilateral knee and lower back disabilities. For all of the denials, the AOJ relayed that the March 2018 VA examiner's report did not relay that the Veteran's gait was so altered to contribute to the Veteran's claimed bilateral knee, and lower back disabilities. In November 2021, the Veteran's treatment records from the Kernersville VA clinic were associated with the claims file. Therein, a provider relayed that the Veteran had an abnormal gait related to the left achilles tendon rupture, which could have potentially led to the degenerative changes of the knees. The Board concludes that, since the finalized October 2009 rating decision, new and material evidence has been added to the record. Specifically, the November 2021 Kernersville VA Clinic notations indicate a possible etiological relationship between the Veteran's service-connected left ankle disability and the claimed bilateral knee and lower back disabilities. Accordingly, the Veteran's claims for service connection for bilateral knee and lower back disabilities are reopened. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 4. Entitlement to a rating in excess of 10 percent for a service-connected left ankle disability (status post rupture achilles tendon) is remanded. In November 2016, the Veteran underwent a VA examination that addressed severity of the service connected left ankle disability. At that time, the Veteran relayed that the left ankle disability was stiff, and he feels weak and had pain at times. In August 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran reported that he took daily pain medication for his left ankle disability before reporting for work. The Veteran relayed that he had taken four weeks of leave from work this year, because of the service-connected left ankle. The Veteran testified that his service-connected left ankle symptoms had increased in severity after his last VA examination. The Veteran's August 2021 hearing testimony suggests an increase in the severity of his service-connected left ankle disability after the November 2016 VA examination. When available evidence is too old for an adequate evaluation of the Veteran's current disability, VA's duty to assist includes providing a more current examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board, therefore, concludes that the Veteran should be scheduled for a new VA examination for his service-connected left ankle disability. 5. Entitlement to service connection for a right knee disability, secondary to the service-connected left ankle disability is remanded. 6. Entitlement to service connection for a left knee disability, secondary to a service-connected left ankle disability, is remanded. 7. Entitlement to service connection for a lower back disability, secondary to a service-connected left ankle disability is remanded. 8. Entitlement to service connection for a right ankle disability, secondary to a service-connected left ankle disability, is remanded. In March 2018, a VA opinion was associated with the claims file. Therein, the examiner opined that the Veteran's gait was not so altered as to contribute to a condition of the lower back, bilateral knees, or right ankle. In April 2018, the AOJ issued a rating decision. Therein, the AOJ denied Veteran's claim for service connection for a right ankle disability. The AOJ also continued the previous denials for service connection for bilateral knee and lower back disabilities. For all denials, the AOJ relayed that the March 2018 VA examiner's report did not relay that the Veteran's gait was so altered to contribute to the Veteran's claimed bilateral knee, lower back, and right ankle disabilities. In February 2020, the AOJ issued a Statement of the Case (SOC). Therein, the AOJ continued to deny the Veteran's claims for service connection for bilateral knee, lower back, and right ankle disabilities. In November 2021, the Veteran's treatment records from the Kernersville VA clinic were associated with the claims file. Therein, a provider relayed that the Veteran had a slightly antalgic gait. A different provider relayed that that the Veteran had an abnormal gait related to the left achilles tendon rupture, which could have potentially led to the degenerative changes in the lower extremities (knees). As the Board has determined that an updated examination is warranted to ascertain the current level of severity of his service connected ankle disability and the Veteran has attributed his claimed disability to his service connected ankle, the Board is of the opinion a new examination would be probative to ascertain whether the Veteran's ankle disability has increased in severity such that it aggravates any current knee, back, or right ankle disability. . Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The AOJ should secure the appropriate VA ankle examination to ascertain the severity and manifestations of the Veteran's service-connected left ankle disability (status post rupture achilles tendon) during the claim period. Access to the VBMS and Legacy Content Manager electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement about the effect(s) of the Veteran's service-connected left ankle disability (status post rupture achilles tendon) on the Veteran's occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. In particular, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA ankle examination must include range of motion testing in the following areas: (a) Active motion; (b) Passive motion; (c) Weight-bearing; and (d) Nonweight-bearing. If the VA ankle examiner is unable to conduct all the required testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the Veteran's left ankle disability, he or she should clearly explain why that is so. 2. The AOJ should secure the appropriate VA examination(s) to ascertain the relationship, if any, between the Veteran's service connected left ankle disability and his claimed right ankle, right knee, left knee, and low back disabilities. The examiner should: (a) Identify any current functional limitation or disability of the (i) right ankle, (ii) right knee, (iii) left knee, and (iv) low back; (b) For any current functional limitation or disability of the (i) right ankle, (ii) right knee, (iii) left knee, and (iv) low back identified, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the functional limitation or disability is either (i) due to, or (ii) aggravated by the Veteran's service connected left ankle disability. The examiner should provide a detailed rationale for any and all opinions rendered. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the remaining issues on appeal. If the benefits sought are not granted, the AOJ must issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond before returning the claims file to the Board for additional appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.