Citation Nr: 21073630 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-33 771 DATE: December 9, 2021 ORDER New and material evidence having been received to reopen the claim of service connection for a left knee disorder, to that extent only, the appeal is granted. New and material evidence having been received to reopen the claim of service connection for a right knee disorder, to that extent only, the appeal is granted. New and material evidence having been received to reopen the claim of service connection for a low back disorder, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for left knee disorder is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for low back disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a September 2006 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a left knee disorder. The Veteran filed a timely disagreement, and a February 2008 Statement of the Case (SOC) continued to deny the claim. The Veteran did not timely appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the February 2008 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder. 3. In a September 2006 rating decision, the VA RO denied service connection for a right knee disorder. The Veteran filed a timely disagreement, and a February 2008 SOC continued to deny the claim. The Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the February 2008 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disorder. 5. In a September 2006 rating decision, the VA RO denied service connection for a low back disorder; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 6. Evidence associated with the record since the September 2006 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for a left knee disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim for service connection for a right knee disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for reopening the previously denied claim for service connection for a low back disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1969 to December 1970. These matters come before the Board of Veterans Appeals (Board) on appeal from an October 2015 and April 2017 rating decision issued by a VA RO. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Reopen the Claim of Service Connection for a Left Knee Disorder 2. Reopen the Claim of Service Connection for a Right Knee Disorder The RO denied the Veteran's claim of service connection for Osgood Schlatter disease of the knees in a May 1979 rating decision, finding that the Veteran had Osgood Schlatter disease since he was 12 years old. The RO noted that the Veteran complained of knee pain in September 1969 and was diagnosed with Osgood Schlatter disease. The RO further noted that at separation, the Veteran was again diagnosed with Osgood Schlatter disease that was asymptomatic except for slightly prominent tibial tubercle. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1979). The Veteran sought to reopen his claim in April 2002, and the RO denied his claim in August 2002 finding that new and material evidence to reopen his claim of service connection for Osgood Schlatter disease of the bilateral knees have not been received. He filed a timely disagreement in October 2002, and a January 2003 SOC continued to deny his claim finding that new and material evidence had not been received. The substantive appeal submitted in January 2005 was not timely. The Veteran was provided notice of this decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of the rating decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2003). In January 2005, the Veteran again filed an application to reopen his claim of service connection for Osgood Schlatter disease of the knees. The RO denied the Veteran's claim in July 2005 finding that new and material evidence had not been received to reopen his claim. In January 2006, the Veteran submitted a request for reconsideration of his claim, and the RO again denied the claim in a September 2006 rating decision finding that although the Social Security Administration (SSA) records were considered new evidence, they were not material to his claim. Thus, his claim was denied. He filed a timely disagreement in March 2007, and a February 2008 SOC continued to deny his claim finding that new and material evidence had not been received. The substantive appeal submitted in May 2008 was not timely. In June 2008, the RO informed the Veteran that his May 2008 VA Form 9 was untimely. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). The evidence received since the February 2008 SOC includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran has raised the issue of presumption of soundness, and a March 2017 VA medical opinion was obtained that addressed the Veteran's contention. This new evidence has not been previously addressed by VA, and the VA opinion raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 3. Reopen the Claim of Service Connection for Low Back Disorder The RO denied the Veteran's claim of service connection for back disorder in a September 2006 rating decision, finding that there was no diagnosis for his back disorder. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2006). The evidence received since the September 2006 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a March 2017 VA examination shows that the Veteran has a current disability for his low back disorder. This new evidence addresses the reason for the previous denial; that is, a current disability accompanied by a nexus opinion, which raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Service Connection for Left Knee Disorder is Remanded. 2. Service Connection for Right Knee Disorder is Remanded. The Veteran contends that the presumption of soundness should apply to the issue of bilateral knees as the knees were found normal upon entrance. See January 2016 Notice of Disagreement. He asserts that he was found to have Osgood Schlatter disease of the bilateral knees that preexisted service and his treatment records show evidence of aggravation. Id. A March 2017 VA medical opinion was obtained where the examiner opined that the Veteran's bilateral knees disabilities clearly and unmistakably existed prior to service. The examiner noted a service treatment record from April 1970 which stated that the Veteran had Osgood Schlatter disease since age 12. This portion of the opinion is adequate. The opinion then stated that his bilateral knee disabilities and were clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that Osgood Schlatter disease usually resolves in the late teens, and there was no evidence, including literature review, that leads to osteoarthritis. The examiner further noted that while the Veteran may experience pain and swelling of the soft tissue due to his history of Osgood-Schlatter disease, there is no evidence that the presence of this diagnosis led to degenerative arthritis that progressed beyond its natural progression. The Board finds that this opinion is incomplete. The Veteran asserts that he made various reports of knee pain during service that the VA examiner failed to address in the medical opinion provided. See June 2017 Substantive Appeal, February 2021 Hearing Tr. at 10. A review of the service treatment records shows that upon reporting knee pain in September 1969, an x-ray of both knees showed old fragmentation of the right tibial tubercle and left calcification in the infrapatellar. He was placed on physical profile for his right knee in October 1969, November 1969, and November 1970. He reported having knee pain and chronic knee problem in December 1969. In April 1970, the Veteran reported having periodic pain over his right tibial tubercle. In October 1970, the Veteran reported having left knee trouble for the past 6 months. During the December 1970 separation examination, evaluation of the knees revealed that both knees occasionally swell. In a corresponding report of medical history, the Veteran specifically reported having had swollen or painful joints. These facts are relevant to the Veteran's claim and an addendum VA medical opinion should be obtained to allow the examiner, with consideration of the evidence above, to address whether the Veteran's bilateral knees were clearly and unmistakably not aggravated beyond its natural progression by his service. 3. Service Connection for Low Back Disorder is Remanded. The Veteran contends that his low back disorder was caused by his active duty service. See June 2017 Substantive Appeal. A March 2017 VA medical opinion was obtained where an examiner opined that the Veteran's low back disorder was less likely due to his service. In support of this conclusion, the examiner explained that the Veteran had a low back strain in October 1970 and was discharged with low back strain with no sequelae. The examiner then noted that the Veteran's low back disorder is likely due to smoking and his obesity and not his active duty service. The Board finds that this opinion is incomplete as the examiner simply restated the service treatment records of low back disorder and then opined that his condition is likely related to smoking and obesity. An addendum VA medical opinion must be obtained for the examiner to provide a clearer rationale as to why the Veteran's low back disorder is not due to his active duty service, to include his report of low back pain during service. In providing the addendum opinion, the examiner is reminded of the Veteran's October 1970 report of injuring his back while lifting a desk resulting in muscle strain, and his report at separation where he specifically reported having had back trouble. If the examiner finds that the Veteran's low back disorder is due to other causes, other than his military service, the examiner should provide a rationale with a clear explanation to support that finding. 4. TDIU is Remanded. The issue of entitlement to a TDIU is inextricably intertwined with the Veteran's remanded service-connection claims, as he has claimed unemployability as a result of some of the remanded disabilities. Castellano v. Shinseki, 25 Vet. App. 146, 161 (2011). Thus, it must be remanded as well. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his bilateral knees and low back claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to review and to offer an opinion as to whether the Veteran's bilateral knee disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated by his period of service. The examiner is advised that "clear and unmistakable" is a higher evidentiary standard than "at least as likely as not." If the examiner finds that there is no clear and unmistakable evidence that the bilateral knee disability was not aggravated in service, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that it began in or is related to active duty service. In offering the opinion, the examiner is asked to consider the service treatment records where the Veteran reported having knee pain in September 1969 and an x-ray of both knees showed old fragmentation of the right tibial tubercle and left calcification in the infrapatellar; being placed on physical profile for his right knee on October 1969, November 1969, and November 1970; his report of having knee pain and chronic knee problem in December 1969; his April 1970 report of having periodic pain over his right tibial tubercle; his October 1970 report of having left knee trouble for the past 6 months; the December 1970 separation examination where his knees was evaluated as manifesting in occasional swelling; and the corresponding report of medical history where the Veteran specifically reported having had swollen or painful joints. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current low back disorder onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider Veteran's October 1970 report of injuring his back while lifting a desk resulting in muscle strain, the December 1970 separation examination where it was noted that the Veteran had back strain in 1970 with no sequelae, and the corresponding report of medical history where he specifically reported having had back trouble. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.