Citation Nr: 21009545 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-37 968 DATE: February 22, 2021 ORDER New and material evidence having been received, application to reopen a claim of service connection for left knee disorder, is granted; to this extent, the appeal is allowed. New and material evidence having been received, application to reopen a claim of service connection for right knee disorder, is granted; to this extent, the appeal is allowed. Service connection for low back arthritis is granted. REMANDED Service connection for left knee disability is remanded. Service connection for right knee disability is remanded. Service connection for right upper extremity disability, to include arthritis is remanded. Service connection for left upper extremity disability, to include arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions is remanded. FINDINGS OF FACT 1. New and material evidence was received by VA concerning the Veteran’s previously denied claim of entitlement to service connection for bilateral knee conditions. 2. The Veteran’s low back condition had its onset in service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for left knee and right knee, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for low back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1981 to September 1991, including service in the Persian Gulf from August 1990 to September 1991. In February 2018 the Veteran and in December 2020 her attorney appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in September 2018 and remanded for additional development. The Veteran previously submitted a claim of entitlement to service connection for bilateral knee disorder that was previously denied in a February 2016 rating decision. Since that time, in connection with her claim, the Veteran submitted VA treatment records, lay statements and sworn testimony regarding her claimed conditions. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen her previously denied claim for left and right knee disorder. See 38 C.F.R. § 3.156. The AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The AMA also applies where a claimant has elected review of a legacy claim under the AMA as provided in §3.2400(c). Id. This section allows for the appellant to elect AMA review of a legacy claim by electing to proceed under the AMA after the issuance of a Statement or Supplemental Statement of the Case (SSOC). 38 C.F.R. § 3.2400 (c)(2). The Board notes that the Veteran submitted a VA form 10182 in July 2020. An election to pursue a legacy claim or appeal under the modernized system following issuance of a statement of the case (SOC) or supplemental statement of the case (SSOC) must be made within the time allowed for filing a substantive appeal under 38 C.F.R. § 19.52(b). 38 C.F.R. § 19.2(d)(2). A substantive appeal must generally be filed within 60 days from the date the agency of original jurisdiction (AOJ) mails the SOC to the appellant, or within the remainder of the one-year period from the date of notice of the decision being appealed, whichever is later. In this case, the appeal rises from a July 2013 rating decision. The initial SOC was mailed December 17, 2015, and the subsequent SSOC was mailed September 18, 2020. The modernized appeal system election forms were received on August 14, 2020. As these were received more than one year after the decision being appealed, more than 60 days after the SOC was mailed, and more than 30 days after the SSOC was mailed, they are untimely. 38 C.F.R. §§ 19.2 (d)(2), 19.52(b). As such, as discussed at the December 2020 Board hearing, see Transcript at page 5, these issues remain in the legacy system and are within the Board’s jurisdiction. Finally, since the RO’s unappealed February 2001 rating decision, new and material evidence has been submitted. As such, the Board finds that the claims must be reopened. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Back disorder The Veteran seeks service connection for her low back condition. In support, she reports that her condition is related to service since she began having back pain in 1982 during PT and she was informed that she had back spasm due to an injury. See BVA hearing transcript. (February 2018). The Veteran has a diagnosis of degenerative arthritis of the spine. See VA medical examination (February 2020). Thus, the Veteran has a current condition and establishes the first element for service connection. Additionally, she continued her medical treatment for her back condition at VA and Non-VA facilities with medications, brace, chiropractic and physical therapy. See VA medical treatment records (June 2014, December 2015, August 2017 and September 2020) and see also Non-VA medical treatment records (September 2014). The Board acknowledges that the RO concluded that service connection was not warranted for this condition because it was not related to service. However, throughout this appeal, the Veteran’s has credibly and competently reported that her condition is due to an injury in service. See BVA hearing transcripts (February 2018 and December 2020). Moreover, her record shows that the Veteran has continued to suffer from pain and functional impairment manifested by low back pain with medical treatment at VA and Non-VA facilities. See VA medical treatment records (June 2014, December 2015, August 2017 and September 2020) and see also Non-VA medical treatment records (September 2014). The Board finds that the medical and lay evidence linking the Veteran’s low back condition to service is probative, competent and credible. Additionally, the Veteran has various outpatient treatment records of her low back disability and treatment. Further, the Board also finds that the competent and credible Veteran’s sworn testimony and buddy statements show that her low back problems began during service and have been recurrent since that time. See BVA hearing transcript (February 2018) and see also buddy statements C.H.F (February 2018) and P.W. (March 2018). The Veteran is competent to report her low back symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, including the Veteran’s sworn testimony and buddy statements, shows that the Veteran’s low back disability had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s low back disability had its onset during her period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). REASONS FOR REMAND Upper extremities disorder, bilateral knees and TDIU The Veteran seeks service connection for her bilateral knees and upper extremities conditions. In support, she asserts that she began having upper extremities and knee problems in service. Indeed, there is evidence of knee problems in service. See STR (January 1985 and May 1989). In September 2018, the Board remanded the upper extremities issues for the examiner to consider the medical and lay evidence and to opine if the conditions are related to service or her service-connected disabilities. Additionally, the Board noted that the Veteran and her representative had competently reported having bilateral upper extremities problems during and since service. See BVA hearing transcript (February 2018 and December 2020). The Veteran was afforded a VA medical examination for upper extremities in February 2020. The examiner stated that the Veteran has a diagnosis of bilateral shoulder arthritis. Additionally, on October 2019, she was examined for her bilateral knee conditions and was diagnosed with bilateral knee arthritis. In both examinations, the examiners provided a negative nexus but did not addressed the Veteran’s medical history and credible lay statements. Thus, a remand of these issues for a new examination that considers the Veteran’s medical and lay reports to determine the onset and origin of her bilateral knees and upper extremities conditions is warranted. As to the inadequacy of the February 2020 VA examination, the Court stated in Miller v. Wilkie, 32 Vet. Ap. 249 (2020) “the proper remedy is to order a new examination where a VA medical examiner fails to address the veteran’s statements about medical history.” Accordingly, this matter must be remanded. In addition, the Board finds that the Veteran’s TDIU claim is inextricably intertwined with the remanded issues as well as on the readjudication of the matters granted and on remand. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, this issue must be remanded. The matters are REMANDED for the following action: 1. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service bilateral knee, and upper extremities problems. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran’s bilateral knees and upper extremities conditions are related to or had its onset in service. Additionally, the examiner must opine if her current bilateral knees and upper extremities conditions are related to her injuries in service or aggravated by service or her service-connected conditions. In offering this opinion, the examiner must acknowledge and discuss the competent and credible medical and lay statements of her knees and upper extremities problems since service and any lay evidence regarding the onset of her disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.