Citation Nr: 21075171 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-45 330 DATE: December 17, 2021 ORDER The application to reopen the claim of entitlement to service connection for right knee arthritis is granted. The application to reopen the claim for entitlement to service connection for lumbosacral strain and degenerative arthritis is granted. REMANDED Entitlement to service connection for right knee arthritis, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for left knee osteoarthritis, to include as secondary to right knee, back, or service-connected PTSD is remanded. Entitlement to service connection for lumbosacral strain and degenerative arthritis, to include as secondary to service-connected PTSD is remanded. Entitlement to service connection for bilateral lower extremity lymphedema status post cellulitis of the leg and, to include as secondary to service-connected PTSD is remanded. FINDINGS OF FACT 1. In a September 1983 rating decision, the RO denied service connection for right knee and back disabilities. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final September 1983 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for right knee and back and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 1983 rating decision denying service connection for right knee and back is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening the claims of service connection for right knee and back. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to April 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, reopened the claims of entitlement to service connection for right knee arthritis, and lumbosacral strain and degenerative arthritis and denied the claim on the merits. The Veteran disagreed with RO's determination and a statement of the case (SOC) was issued in August 2016 addressing the matters. The Veteran timely appealed. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran has alleged clear and unmistakable error, but no such motion has been adjudicated. See April 2020 Appellate Brief. In this regard, the Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in RO decisions. Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). Therefore, the CUE allegation is referred to the RO pursuant to 38 C.F.R. § 20.904(b). New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Right Knee / Back As set forth above, in a September 1983 rating decision, the RO denied service connection for right knee and back disabilities finding no evidence that current right knee and back disabilities occurred in or was caused by service. The Veteran was notified of appellate rights and did not appeal the RO's determination, and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the RO's September 1983 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105 (c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen the claim of service connection for right knee and back disabilities. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in January 1983. That evidence includes a June 2015 VA knee examination report, at which the Veteran reported that during bootcamp, knees were injured while playing tag football. With respect to the back issue, in a June 2015 VA back examination report, the Veteran reported that a back injury while lifting heavy fifty gallon drums and boxes in service. Given the basis for the prior denial of the claims, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claims of service connection for right knee and back disabilities and raises a reasonable possibility of substantiating the claims; therefore, claims are reopening of the claims is warranted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). REMAND 1. Right Knee / Left Knee The Veteran contends that right and left knee conditions are due to military service. In an alternative theory, the Veteran contends that right and left knee condition are secondary to service-connected PTSD. The Veteran underwent a VA examination in June 2015, at which the examiner opined that it is less likely as not the Veteran incurred a bilateral knee condition during military service. The examiner's rationale was the Veteran's right knee was pre-existing and was not injured beyond natural progression, and there were no documented complaints with the left knee. The examiner further concluded that it is less likely as not the Veteran incurred a right knee condition during military service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the June 2015 VA opinion inadequate, as the examiner failed to consider the presumption of soundness when he opined that the Veteran's right knee condition was less likely than not incurred in or caused by the in-service injury, event, or illness. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The Veteran's February 1980 enlistment examination shows the Veteran's lower extremities were examined and determined to be normal. Thus, the Veteran was presumed sound when entering service and that presumption can only be rebutted with clear and unmistakable evidence of both preexistence and lack of aggravation. Additionally, in an April 2020 Appellate Brief, the Veteran's attorney asserted an association between the Veteran's orthopedic conditions and PTSD. Specifically, the attorney asserted that medical research had shown a link between obesity and mental health/medications, and orthopedic conditions. The attorney cited the articles, "Posttraumatic stress disorder and risk of obesity: Systematic review and meta- analysis" and "PTSD and obesity in younger and older veterans: Results from the mind your heart study." The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Significantly VA's General Counsel has held that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017 (Jan. 6, 2017). In order to establish service connection on this basis, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. Obesity may be an "intermediate step" in a secondary-service-connection analysis when the service-connected disability causes or aggravates obesity. Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Incidental references to the Veteran's weight or weight gain in the evidence is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step pursuant to VA General Counsel Precedential Opinion 1-2017. Garner v. Tran, 33 Vet. App. 241, 249 (2021). There must be some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Id. The considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to, (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. Id. at 241, 248. As such, these articles raise the possibility that the Veteran's orthopedic conditions are secondary to his service-connected psychiatric disability with obesity as an intermediate step. On remand, the VA examiner must address whether the Veteran's right and left knee disabilities may be secondary to his service-connected PTSD, to include as due to obesity as an intermediate step. 2. Back The Veteran contends a back disability is due to military service. In an alternative theory, the Veteran contends that a back disability is secondary to service-connected PTSD. The Veteran underwent a VA examination in June 2015, at which the examiner opinion that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As discussed in detail above, the Veteran's attorney submitted articles discussing an association between the Veteran's orthopedic conditions and PTSD. These newly received medical articles suggests a nexus between the Veteran's back disability and service but is insufficient to warrant a grant of service connection at this time given the complex medical issues regarding secondary service connection in this case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). As such, the Board finds that a remand for a VA opinion is warranted to address whether the Veteran's back disability may be secondary to his service-connected PTSD, to include as due to obesity as an intermediate step. 3. Bilateral Lower Extremity The Veteran contends that bilateral lower extremity lymphedema status post cellulitis of the leg and ankle is due to military service. In an alternative theory, the Veteran contends that bilateral lower extremity lymphedema status post cellulitis of the leg and ankle is secondary to service-connected PTSD. The Veteran underwent a VA examination in June 2015, at which the examiner opinion that the Veteran's bilateral lower extremity lymphedema status post cellulitis of the leg and ankle was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale discussed the Veteran's contention that this vascular condition is due to exchange of boats during drug seizures and cross contamination between boats. The examiner explained that lymphedema is a retention of fluid in the tissues, caused by a compromised lymphatic system, which normally returns interstitial fluid to the thoracic duct and then the bloodstream. The examiner concluded that it is less likely as not the Veteran incurred lymphedema with secondary cellulitis during military service. In April 2020, the Veteran's attorney submitted several articles discussing an association between the Veteran's bilateral lower extremity lymphedema diagnosed as pseudomonas and Providencia infection in January 2014, and the Veteran's exposures while serving in the Gulf of Mexico. The articles include: Annual Surveillance Summary: Pseudomonas aeruginosa Infections in the Military Health System [MHS], 2015; Functional and Genomic Characterization of a Pseudomonas aeruginosa Strain Isolated from the Southwestern Gulf of Mexico Reveals an Enhanced Adaptation for Long-Chain Alkane Degradation; and Microbial community analysis of Deepwater Horizon oil-spill impacted sites along the Gulf coast using functional and phylogenetic markers. Additionally, as set forth above, the Veteran's attorney asserted an association between the Veteran's bilateral lower extremity lymphedema and his service-connected PTSD, to include as due to obesity as an intermediate step. In light of the above, the issue must be remanded to obtain an opinion. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate VA physician to determine the nature and etiology of the Veteran's right and left leg disabilities. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The physician should answer the following questions: (a.) Presuming the Veteran was sound upon entrance into active duty service, the physician should opine whether it is at least as likely as not (at least a 50 percent probability) that any right and left knee disability is related to active service? (b.) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD caused him to become obese? The opinion must comment on the relevant evidence of record, to include the medical articles submitted by the Veteran's attorney in April 2020. (c.) If so, was the obesity, as a result of the service-connected PTSD, a substantial factor in causing or aggravating the Veteran's right and left knee disabilities? (d.) Would the Veteran's right and left knee disabilities have not occurred but for the obesity caused by service-connected PTSD? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. The examination report must include a complete rationale for all opinions expressed. 2. Request an opinion from an appropriate VA physician to determine the nature and etiology of the Veteran's back disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The physician should answer the following questions: (a.) Is it at least as likely as not (at least a 50 percent probability) that any back disability is related to active service? The opinion must comment on the relevant evidence of record, to include the medical articles submitted by the Veteran's attorney in April 2020. (b.) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD caused him to become obese? The opinion must comment on the relevant evidence of record, to include the medical articles submitted by the Veteran's attorney in April 2020. (c.) If so, was the obesity, as a result of the service-connected PTSD, a substantial factor in causing or aggravating the back disability? (d.) Would the Veteran's back disability have not occurred but for the obesity caused by service-connected PTSD? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. The examination report must include a complete rationale for all opinions expressed. 3. Request an opinion from an appropriate VA physician to determine the nature and etiology of the Veteran's bilateral lower extremity disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The physician should answer the following questions: (a.) Is it at least as likely as not (at least a 50 percent probability) that any bilateral lower extremity lymphedema is related to active service? The opinion must comment on the relevant evidence of record, to include the medical articles submitted in April 2020 suggesting an association between the Veteran's lymphedema and environmental exposures while serving in the Gulf of Mexico. (b.) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD caused him to become obese? The opinion must comment on the relevant evidence of record, to include the medical articles submitted by the Veteran's attorney in April 2020. (c.) If so, was the obesity, as a result of the service-connected PTSD, a substantial factor in causing or aggravating the bilateral lower extremity disability? (d.) Would the Veteran's bilateral lower extremity disability have not occurred but for the obesity caused by service-connected PTSD? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. The examination report must include a complete rationale for all opinions expressed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.