Citation Nr: 21009143 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-20 111 DATE: February 19, 2021 ORDER The application to reopen a previously denied claim for service connection for a left knee disability (including status post total left knee replacement), to include as secondary to service-connected right knee replacement, is granted. REMANDED Entitlement to service connection for a left knee disability (including status post total left knee replacement), to include as secondary to service-connected right knee replacement, is remanded. Entitlement to service connection for degenerative arthritis of the right wrist with unhealed radial and ulnar fractures (right wrist disability), as secondary to a service-connected disability, is remanded. Entitlement to service connection for right comminuted intertrochanteric and subtrochanteric fractures, status post open reductions internal fixation repair (right hip disability), as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. An unappealed April 2007 rating decision continuing prior denials of service connection for a left knee disability is final. 2. The evidence received since the April 2007 decision that denied service connection for a left knee disability is new and material, in that, it is not cumulative or redundant of the evidence of record at the time of the April 2007 rating decision and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2007 rating decision that continued prior denials of service connection for a left knee disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen a previously denied claim for service connection for a left knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1951 to May 1953. During the current appeal, and specifically in November 2020, he testified at a virtual Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. New and Material Evidence - Left Knee Disability Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” If VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of the Veteran’s claim considering all the evidence both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Regardless of what the Regional Office (RO) has determined, it is the Board’s jurisdictional responsibility to consider whether a claim should be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). “New” evidence means evidence not previously submitted to VA decision makers. “Material” evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156 (a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This is a low threshold meant to enable, rather than preclude, reopening. The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim for service connection for a left knee disability was previously denied in November 1977, April 1988, September 1988, February 1990, and September 2003. An April 2007 rating decision continued those prior denials of this claim on the basis that the evidence did not demonstrate that the Veteran’s left knee disability was related to service or was aggravated by the service-connected right knee replacement. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. He also did not submit new and material evidence within the one year following that decision. 38 C.F.R. § 3.156(b). Thus, the decision became final. 38 C.F.R. § 20.1103. The evidence received since the last final denial includes updated VA treatment records and a November 2020 Board hearing transcript. This new evidence, combined with the Veteran’s service treatment records and private medical records, relates to the claim for secondary service connection. Assuming the credibility of this new evidence, as the Board must for this purpose, the Board finds that new and material evidence has been received sufficient to reopen this previously denied claim. This evidence was not previously before agency decision makers in April 2007 and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; Fortuck, 17 Vet. App. at 179-80; Justus, 3 Vet. App. 510. To this extent only, this appeal is granted subject to further development of the underlying claim on remand. REASONS FOR REMAND Service Connection For Left Knee Disability On Direct And Secondary Bases The Veteran contends that his left knee disability was caused by the same in service injury that resulted in his service-connected right knee replacement disability. Alternatively, he claims that, although his left knee was more stable than the service-connected right knee, he favored the right knee due to the knee replacement and ended up putting more pressure on the left knee, which caused his left knee problems to get worse. See Board hearing transcript at 8. The record reflects that the Veteran sustained an in-service injury to his right knee after falling from a bunker. There is also a report stating that the Veteran injured his right knee after playing football in service. The Veteran disputes the latter report of how the injury occurred. See Board hearing transcript at 8. Nonetheless, he has been service-connected for a right knee disability since May 1953. He also has a current left knee disability. Although service treatment records (STRs) show complaints and treatment for the right knee, due to the documented in-service fall, there are no in-service complaints or treatment related to the left knee. The Veteran maintains that he has been experiencing problems with his left knee since service to the present. In August 1988, a private orthopedic surgeon, Dr. J.C.B., examined the Veteran’s right knee and submitted his analysis to the RO. Although he indicated that his examination of the Veteran was limited to the right knee, he noted in his report that the left knee had been giving the Veteran trouble for 35 years and is bothersome to a greater degree with the passage of time. The surgeon further noted that this was somewhat due to the greater reliance on the left knee because of the lack of reliability on the right knee. He concluded that, because of the left knee with its difficulties, the Veteran would have unsure left knee ability to rely upon with a total knee procedure on the right. In addition, a December 1996 VA examination report for the knees indicates that there was internal derangement of both knees subsequent to hyperextension and probably twisting injury in 1953, with increasing degenerative and secondary changes over the years, leading to total replacement of both knees in 1993 and 1995. The Board notes that, taken together, this information warrants another VA examination and medical opinion to determine the nature and etiology of the Veteran’s left knee disability. Service Connection For Right Wrist And Right Hip Disabilities On Secondary Bases The Veteran does not allege that his right wrist and right hip disabilities are directly related to any injury or event that occurred in service. Instead, he contends that those injuries resulted from a fall he sustained, due to a weakened left knee, while exiting his recreational vehicle in 2016. See Board hearing transcript at 2. The Veteran argues that, due to favoring his service-connected right knee over the years, he was forced to put more pressure on the left knee, which became worse over time. He further states that his left knee gave out and caused him to fall and fracture his right hip/femur and right wrist. Private hospital records dated in November 2016 document the Veteran’s fall and subsequent injuries to his right wrist and hip. Based on the Veteran’s contentions, the Board will limit these two service connection claims to issues of entitlement to service connection on secondary bases. In October 2017, a VA examiner negatively opined that the Veteran’s fall and related injuries to the right wrist and hip are not associated with the service-connected right knee disability. He noted that the Veteran’s history, taken immediately after the fall, indicates that the Veteran’s service-connected right knee replacement had little, if anything, to do with the fall. The examiner further stated that there are no medical notes prior to the November 2016 fall indicating that anything was wrong with the Veteran’s knee, other than general soreness, which was chronic, and not specifically addressed. The Board does not find this to be entirely accurate. In addition, in light of details provided in the August 1988 orthopedic report and the December 1996 VA examination report, already noted herein, pertaining to the Veteran’s left knee, it is necessary to obtain an updated VA medical opinion regarding the relationship between the Veteran’s injured knees and the November 2016 fall that caused his right wrist and hip fractures. Accordingly, these matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left knee, right wrist, and right hip disabilities he may have. The claims file must be made available to the examiner for review in conjunction with this examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is asked to: (a.) Note any left knee disability that presently exists (on current examination) or that has existed during the appeal period. (b.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed left knee disability was incurred in the Veteran’s active service or is otherwise causally related to his active duty or to an incident therein. In answering this question, the examiner must also consider and address the Veteran’s in-service injury to his right knee and discuss whether any current left knee disability is consistent with such in-service injury. (c.) Opine as to whether any such diagnosed left knee disability is at least as likely as not proximately due to (or the result of), or aggravated (made worse) by, the service-connected right knee replacement/injury. In answering this question, the examiner is asked to consider and address (i) the August 1988 examination report from an orthopedic surgeon, who noted that the left knee had been giving the Veteran trouble for 35 years due to the greater reliance on the left knee because of the lack of reliability on the right knee; and (ii) the December 1996 VA examination report, which notes internal derangement of both knees subsequent to hyperextension and probably twisting in-service injury in 1953, with increasing degenerative and secondary changes over the years, leading to total replacement of both knees in 1993 and 1995. (d.) Opine as to whether any diagnosed right wrist and right hip/femur disabilities are at least as likely as not proximately due to (or the result of), or aggravated (made worse) by, the service-connected right knee replacement/injury. The examiner is asked to consider and address the Veteran’s contention that his fall was caused by a weakened left knee, due to his favoring of the service-connected right knee that was injured in service. The examiner is also asked to consider the August 1988 orthopedic report and the December 1996 VA examination report, noted herein, pertaining to the left knee. The examiner is advised that the Veteran is competent to report his symptoms and history pertaining to his knees, right wrist, and right hip and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, Associate 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.