Citation Nr: 21076696 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-58 594 DATE: December 27, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a low back disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a left knee disability is granted. Service connection for arthritis and degenerative disc disease of the lumbar spine is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the June 2007 denial of his claims of service connection for low back pain and left knee disability, and new and material evidence was not received within one year of that decision. He has since submitted new evidence pertinent to his claims. 2. After resolving doubt in his favor, the evidence shows the Veteran has arthritis and degenerative disc disease of the lumbar spine due to altered gait from his service-connected right knee disability. CONCLUSIONS OF LAW 1. The ¬¬June 2007 Regional Office denial of the claim for service connection for low back pain became final, and new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The ¬¬June 2007 Regional Office denial of the claim for service connection for left knee disability became final, and new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 3. The criteria for service connection for arthritis and degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1983 to June 1986, September 1990 to April 1991, February 2003 to May 2004, and December 2008 to February 2010. 1. New and material evidence for the claim of service connection for a low back disability 2. New and material evidence for the claim of service connection for a left knee disability Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Regional Office (RO) issued a rating decision in June 2007 denying the Veteran's claims of service connection for low back pain and left knee disability. The Veteran was informed of his right to appeal but did not do so. Furthermore, new and material evidence was not received within one year of the rating decision. Therefore, the June 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. Since the June 2007 denial, new and material evidence has been associated with the claims file. Specifically, during the Board hearing, the Veteran testified that walking with a cane and compensating for his right knee put pressure and caused problems with his back and left knee. Additionally, the Veteran submitted a positive medical opinion in September 2021 associating his back pain with his right knee disability. This evidence was not previously considered by agency decision makers and relates to the unestablished nexus element. Therefore, the claims should be reopened. 3. Service connection for arthritis and degenerative disc disease of the lumbar spine Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the evidence, the Board finds the criteria for service connection for arthritis and degenerative disc disease of the lumbar spine have been met on a secondary basis. 38 C.F.R. §§ 3.303, 3.310. First, the evidence shows a current low back disability. The August 2015 examiner diagnosed degenerative arthritis of the spine. A November 2005 x-ray also revealed osteoarthritis and degenerative disc disease of the lumbar spine. Thus, the first element of service connection is shown. See Holton, 557 F.3d at 1366. Next, after resolving doubt in the Veteran's favor, the evidence shows the Veteran's low back disability is due to his service-connected right knee disability. The Veteran is service connection for right knee meniscus tear with chondromalacia patella and internal derangement. VA examinations from March 2018 and October 2020 show reports of locking and giving way in the right knee and use of a brace and cane. In August 2015 and September 2016 opinions, the VA examiner found the Veteran's low back disability was less likely than not the result of his service-connected right knee disability. The examiner explained that the physical examination and objective findings at imaging studies were consistent with the classic degenerative changes that occur as part of the aging process. In the September 2021 opinion, the private expert opined that the Veteran's back condition is secondary to limping he developed due to his right knee injury. The expert explained that any condition that results in major displacement of the center of gravity of the body's mass away from the vertical axis of the spine will create increased forces in the stabilizing posterior erector spinal muscle in order to balance the spine, and increased spinal motion as a result of abnormal displacements of the body's center of gravity while walking will contribute to disc breakdown, particularly at the lumbo-sacral region. The expert further explained that when limping, there is a shift of the body's center of gravity toward the affected leg. In Veteran's case, the expert found that limping as a result of right knee meniscus tear would generate the greatest lumbar disc load transmission due to major vertical and horizontal displacements of the center of gravity of the body mass required to maintain spinal equilibrium. Both medical experts considered the evidence of record and provided explanations for the cause of the Veteran's low back disability. In that regard, the evidence is in relative equipoise. Resolving doubt in the Veteran's favor, the Board finds the evidence shows arthritis and degenerative disc disease of the lumbar spine are due to his service-connected right knee disability. Service connection is warranted on a secondary basis. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. Remand is required for the left knee disability claim. The evidence shows the Veteran has left knee degenerative joint disease and also suffered meniscal tears that were surgically repaired in May 2015. VA obtained a medical examination and opinion on the left knee in December 2014. The examiner opined that the Veteran's left knee disability was less likely than not proximately due to or the result of his service-connected right knee disability. The examiner did not address whether the Veteran's left knee could be aggravated by his right knee disability. A new opinion is needed to address aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain a medical opinion on the Veteran's left knee. The medical expert should review the claims file and address whether the Veteran's left knee disability, to include degenerative joint disease and history of meniscal tears, is at least as likely as not (1) caused or (2) aggravated (worsened) by the service-connected right knee disability. The expert should consider all relevant lay and medical evidence, including the Veteran's report that walking with a cane and overcompensating for his right knee affects his left knee. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.