Citation Nr: 21075812 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-17 221A DATE: December 21, 2021 ORDER New and material evidence having been received; the claim of entitlement to service connection for left knee condition is reopened. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to a rating in excess of 50 percent for service-connected dysthymic disorder is remanded. Entitlement to a rating in excess of 10 percent for small edge tear right medial meniscus (right knee disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a final decision issued in June 2010, the RO denied the Veteran's claim of entitlement to service connection for left knee condition. 2. Evidence added to the record since the June 2010 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for a service connection for left knee condition. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final June 2010 rating decision, the criteria for reopening the claim of entitlement to service connection for left knee condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 2001 to March 2002. In August 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the Veteran's August 2021 Board hearing, the Veteran testified that his ability to work has been permanently impacted, in part, due to his service-connected right knee disability and his service-connected dysthymic disorder. The Veteran testified that due to the physical and mental aspects of his disabilities, he cannot hold a regular job. Thus, entitlement to TDIU is considered a part of the Veteran's claims for entitlement to an increased ratings for his right knee and psychiatric disabilities. See Rice v. Shinseki. 22 Vet. App. 453 (finding that a TDIU request in which the disability is already service connected is not a separate claim for benefits but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400. Given such, the Board has jurisdiction over this claim, and will be further explained below. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises 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) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this 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 by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). At the onset, the Board acknowledges that in January 2014, service treatment records were associated with the file after the June 2010 last prior final denial with respect to the Veteran's claim to reopen service connection for a left knee condition. Thus, the Board has considered whether reconsideration of the claim is warranted under 38 C.F.R. § 3.156 (c). VA regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). In this case, the newly-associated service records are not relevant to the Veteran's claim to reopen service connection for a left knee condition, as these records do not go to proving an unsubstantiated fact. Here, the additionally associated service medical records are dental records, and are not relevant to the Veteran's left knee condition. Given such, these records do not relate to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156 (c) is not required based upon the additionally-received service records. Left Knee Condition Here, in a June 2010 rating decision, the RO denied the Veteran's claim for service connection for left knee condition, for lack of an in-service occurrence and a lack of a nexus. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In July 2013, the Veteran submitted a claim to reopen his claim for a left knee condition. The evidence of record at the time of the final prior denial in June 2010, included, inter alia, the Veteran's service treatment records, Veteran lay statements, and VA treatment records. The evidence submitted and obtained since the June 2010 final denial includes the Veteran's lay statements, updated VA treatment records, and a VA examination report. Upon review, the Board finds that this evidence is both new and material sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying service connection claim. Specifically, the Veteran's treatment records reflects an opinion that the Veteran's knees are "service-related." See September 2013 VA medical records. As this evidence relates to an unestablished fact, a possible nexus between the Veteran's knee disability and his service, reopening of the claim is in order. Shade, 24 Vet. App. 110. REASONS FOR REMAND Left Knee Condition After reopening the Veteran's claim for a left knee condition, the Board finds that additional development is warranted. Here, the Board notes that in a September 2013 neurosurgery consult, the examiner noted that the Veteran's knees are "service related." However, the examiner did not provide a rationale as to the basis of this opinion. A single conclusory statement without a rationale is inadequate. As any opinion, to be adequate, it "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Thus, the Board finds that an addendum medical opinion as to whether the Veteran's left knee condition is related to his service is warranted. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Veteran contends that his left knee condition is secondary to his service-connected right knee disability. Thus, a remand for a medical opinion to determine whether the Veteran's left knee condition is secondary to his service-connected right knee condition is warranted. Dysthymic Disorder and Right Knee Disability With respect to the Veteran's claims for increased ratings for dysthymic disorder and a right knee disability, further development is required. During the August 2021 Board hearing, the Veteran testified that the symptoms of his dysthymic disorder and right knee disability have worsened since his last examinations. The Veteran's disabilities were last examined in December 2013. With respect to his right knee disability, since his last examination, the Veteran testified that his right knee disability has worsened, in that he is in severe pain daily. He testified that his movements are slower and that he has an awkward gait. With respect to his dysthymic disorder, since his last examination, the Veteran testified that his disorder has worsened, in that he does not like crowds, he has a short fuse, he loses his train of thought, and he cannot finish tasks. He also testified that he has trouble sleeping and becomes frustrated easily. In light of the above, the Board finds that an updated VA examination is necessary to ascertain the current severity of these disabilities. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, a remand for new VA examinations to assess the current severity of the Veteran's service-connected dysthymic disorder and a right knee disability is warranted. TDIU Additionally, as to the TDIU claim, the Board finds that the claim of entitlement to TDIU is inextricably intertwined with the claims on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on the other claims have been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain any outstanding medical records relevant to the Veteran's claims on appeal, to include, but not limited to, the Veteran's updated VA psychiatric treatment records. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified VA medical examiner to ascertain the nature and etiology of the Veteran's left knee condition. After reviewing the entire record, the examiner should provide an opinion responding to the following (a) Whether the Veteran's left knee condition is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of left knee problems. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. (b) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's left knee condition is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include as due to his right knee disability. The examiner must provide separate findings and rationales relating to causation and aggravation. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected dysthymic disorder. The examiner should specifically have the Veteran provide a full account of his symptoms. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with these conditions. All medical findings are to be expressed in terms conforming to the schedular criteria of under the General Rating Formula for Mental Disorders. 4. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected right knee disability. The examiner should specifically have the Veteran provide a full account of his symptoms. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with these conditions. All medical findings are to be expressed in terms conforming to the schedular criteria of under Diagnostic Code 5260. The examination report should include the range of motion of the knees in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran's right knee disability. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should also, to the extent possible, provide a retrospective opinion addressing additional loss of motion after repetitions, and function loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations - throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. As to the Veteran's right knee disability, the examiner shall inquire as to periods of flare-up, and note the frequency, severity, and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.