Citation Nr: 21077193 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-53 151A DATE: December 28, 2021 ORDER The appeal to reopen a claim of service connection for a left knee disability based on the receipt of new and material evidence is granted. REMANDED Entitlement to service connection for a left knee disability (on the merits) is remanded. Entitlement to service connection for a back disability to include sclerosis, claimed as secondary to service-connected disability, is remanded. Entitlement to specially adapted housing or special home adaptation grant is remanded. Entitlement to financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment is remanded. FINDING OF FACT A July 1991 rating decision denied the Veteran service connection for a left knee disability, finding that the evidence failed to show a current disability; evidence received since that decision relates to an unestablished fact necessary to substantiate the claim and raises a possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a left knee disability may be reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1980 to April 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) rating decision. While the VA evidently reopened the left knee claim in the September 2013 rating decision and October 2018 statement of the case, the Board has jurisdictional responsibility to determine whether a previously denied claim here, a prior, unappealed July 1991 rating decision denying service connection for a left knee disability is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, as to the left knee claim, the initial matter for appellate consideration is whether to reopen it. In June 2021, a virtual videoconference hearing was held before the undersigned. Whether new and material evidence has been presented to reopen a claim of service connection for a left knee disability A July 1991 rating decision denied service connection for a left knee disability, based on a finding that, despite treatment in service for a left knee injury in the early 1980s, there was no residual disability identified on the post-service VA examination in July 1990, a few months after service discharge. Thus, a current disability for which service connection could be awarded was not found at that time. The Veteran was notified of the decision in August 1991, but as she did not file an appeal of the July 1991 rating decision to the Board or submit new and material evidence within the following year, that decision became final. The claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. At the time of the July 1991 rating decision, the record consisted of service treatment records (STRs), post-service treatment records, a VA examination report, and statements of the Veteran. The STRs show complaints of left knee pain in March 1980 following an injury (jumping out of a bed). Subsequent arthroscopies of the knee in April 1980 and August 1981 were negative. She periodically complained of left knee pain thereafter, and a December 1983 re-enlistment examination report notes a diagnosis of chondromalacia of the patella of the left knee. Military physical examinations in December 1987 and March 1989 (re-enlistment) show that the lower extremities were clinically normal. On a review of systems, a March 1990 report notes the Veteran had continuing left knee pain. The separation examination report in April 1990 shows the lower extremities to be clinically abnormal; the report indicates that the left knee had decreased strength and moderate tenderness to percussion, which was deemed to be non-disabling. The Veteran was discharged from service in April 1990. In May 1990, the Veteran filed a claim for VA disability compensation, asserting that she had chondromalacia of the patella and tenderness of the left knee. Post-service treatment records do not show a diagnosis of a left knee disability. A July 1990 VA examination report reflects the Veteran's report that when she runs, the left knee goes out on her. She also complained that it is very tender all the time and that prolonged standing and walking made her knee painful. She stated the knee began to hurt while running in boot camp. Examination of the left knee at that time was normal, and X-rays of the knee showed no definite abnormalities. "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). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the July 1991 rating decision includes VA and private treatment records, a VA examination report, and statements and hearing testimony of the Veteran. In various statements, the Veteran asserted in her substantive appeal statement that she has had problems with her left knee ever since she injured it during boot camp. In a May 2015 statement, she stated that since her service discharge, she was always falling due to her left knee giving out and wore a knee brace. At a June 2021 Board hearing, she asserted that she had left knee problems throughout boot camp and service and that the reason she fell in 1992 and fractured her left lower leg was due to her left knee giving way. She said that the VA examiner [in January 2018] was not an orthopedist and recorded statements on the report that she did not convey during the examination. The treatment records show that in May 1992 the Veteran fractured her distal tibia, requiring open reduction internal fixation. Thereafter, she contracted MRSA, cellulitis, and osteomyelitis, requiring surgeries that resulted in a shorter left leg, a deformed left ankle, and an antalgic gait. After an injury in April 2011, an MRI revealed ACL and multiple meniscal tears. X-rays of the left knee in August 2012 show degenerative joint disease. A January 2018 VA examination report reflected diagnoses of left knee meniscal tear and degenerative arthritis. (The examiner found her current knee disabilities were attributed to post-service injuries.) This evidence is new evidence because it was not considered in the July 1991 rating decision and shows a current left knee disability. Moreover, it is also material evidence, as it appears to relate the current left knee disability to the Veteran's in-service injury and treatment. (The Veteran's statements and testimony are presumed credible for the purpose of reopening this claim.) Therefore, such evidence relates to an element necessary to substantiate the service connection claim (e.g., a current diagnosis associated with an in-service injury) and raises a possibility of substantiating the claim. In short, considered with the evidence of record in July 1991, this evidence constitutes new and material evidence sufficient to reopen the claim of service connection for a left knee disability. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability (on the merits) The Board cannot make a fully-informed decision on the left knee issue because the January 2018 VA examination is inadequate. The examiner found the Veteran's degenerative joint disease was more likely related to her markedly antalgic gait from the post-service 1992 tibial fracture and complicated post-operative course, because it placed excessive and abnormal strain on her left knee over the years, than to the documented injury in service. The examiner also found the April 2011 twisting injury resulted in her present knee diagnosis relative to the ACL and meniscal tears. His conclusion was based in part on a finding that the military physical examination just prior to her separation did not mention knee pain or a knee condition at that time. However, the April 1990 separation physical examination of the lower extremities was abnormal, with notations of decreased knee strength and moderate tenderness to percussion (although it was deemed non-disabling). The Veteran is entitled to an opinion that is based on a fully accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Coupled with the Veteran's testimony that her fall in May 1992 was due to her left knee giving way, it appears that the Veteran's left knee remained symptomatic (with tenderness, weakness, and possibly instability) at the time of separation as well as at the time of the July 1990 VA examination, which revealed no objective findings. Another theory of entitlement, raised at the hearing, was that the Veteran's service-connected psoriatic arthritis may have played a role in joint problems. In that regard, an October 1987 STR entertained this possibility, indicating that the Veteran reported increasing arthralgias that involved certain joints including her knees and that she had probable early psoriatic arthritis. Thus, the Board deems that a new VA examination to address the pertinent in-service and post-service evidence in light of all theories raised is necessary. Prior to the examination, the VA should obtain all medical records in connection with the Veteran's treatment in May 1992 for left lower leg fractures. It is not clear from the record whether she received treatment from the VA or from a private provider. 2. Entitlement to service connection for a back disability to include sclerosis, claimed as secondary to service-connected disability In January 2018, the Veteran also underwent a VA spine examination, and her diagnoses were lumbar spine degenerative disc disease, lumbar spine degenerative joint disease, and bilateral lumbar radiculopathy. (The examiner observed too that X-rays in April 2010 showed degenerative disc disease, and an MRI in February 2014 showed multilevel degenerative disc disease.) The Veteran contends that her back disability, which she asserted at the Board hearing was scoliosis while the VA denied a claim specifically involving spinal "sclerosis," warrants service connection on a secondary basis. She initially asserted her back disability was due to her left knee disability, but at the hearing raised a different theory, that it may be due to or aggravated by her service-connected psoriatic arthritis. After finding the left knee was not service-related, the January 2018 examiner declared moot the question of whether the back disability was related to the left knee disability. However, given the inadequate knee examination and the newly raised theory concerning psoriatic arthritis, a new examination addressing the etiology of her claimed spine disability is necessary. 3. and 4. Entitlement to specially adapted housing or special home adaptation grant, and to financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment As these claims may be impacted by the outcome of the service connection claims, they must be deferred pending the completion of the development of the left knee and back claims. The matters are REMANDED for the following: 1. Ask the Veteran to submit any private medical records relating to her evaluation and treatment in May 1992 for left lower leg (distal tibia) fractures. Inform her that she may otherwise submit a medical release that authorizes the VA to obtain the records on her behalf. If she submits a release, obtain those records. 2. Then, arrange for a VA examination of the Veteran by an orthopedist (given the nature and complexity of the medical questions) to determine the likely etiology of her current left knee and back disabilities. The claims file must be reviewed by the examiner. If the examiner requires consultation with a specialist, such as a rheumatologist, to respond to a question, such should be arranged. After examination of the Veteran and review of pertinent medical records, the examiner should provide opinions that respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that any left knee disability of the Veteran is related to her service from March 1980 to April 1990, to include the in-service documented references to the knee? (Identify, with specificity, the knee disability.) References in service include injury in March 1980, arthroscopies in April 1980 and August 1981, subsequent complaints of knee pain with diagnosis of chondromalacia of the patella (on physical examination in December 1983), and symptoms of weakness and tenderness noted on April 1990 separation physical examination. Also, she had similar symptomatic complaints of tenderness, pain on prolonged standing and walking, and giving way a few months later on July 1990 VA examination. In furnishing the opinion, the examiner should review the Veteran's lay statements and testimony describing problems with her left knee ever since an injury in boot camp and asserting that the reason for her fall in May 1992 (resulting in fracture of the left lower leg) was due to her left knee giving out. (b). Is it at least as likely as not that any left knee disability of the Veteran was caused, or aggravated, by her service-connected psoriatic arthritis? (Identify the knee disability with specificity.) Aggravation, for VA purposes, means a worsening of the disability beyond the natural progression. (c). Is it at least as likely as not that any back disability of the Veteran was caused, or aggravated, by a service-related left knee disability or her service-connected psoriatic arthritis? (Identify the back disability with specificity.) (d). If it is found that a back disability has been aggravated by a service-connected disability (even if the impact was minimal), identify the degree of worsening that resulted from the contribution to aggravation by the service-connected disability, if medically ascertainable (if not, explain why not). (e). If a left knee disability or back disability is found to not be related to the Veteran's service or a service-connected disability, identify the etiology that is considered to be more likely (and explain why that is so). All opinions should include complete explanation of rationale. with citation to relevant evidence and medical principles. If medical principles are invoked, citation to supporting medical literature would be helpful. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.