Citation Nr: 21014189 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-15 115 DATE: March 11, 2021 ORDER New and material evidence having been received, the service connection claim for a low back disability is reopened. Entitlement to service connection for a left knee disability as due to service-connected right knee disability is granted. Entitlement to service connection for pharyngitis is denied. Entitlement to service connection for a right elbow condition (previously claimed as right forearm lipoma) is denied. REMANDED Entitlement to service connection for a low back disability, to include as due to service-connected right knee disability is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for chronic headaches, to include as due to service-connected allergic rhinitis and/or obstructive sleep apnea is remanded. Entitlement to an evaluation in excess of 10 percent for right knee degenerative spurs status post meniscal tear for the period from January 6, 2015 to August 19, 2019 is remanded. Entitlement to an evaluation in excess of 30 percent for right knee degenerative spurs status post meniscal tear for the period beginning August 20, 2019 is remanded. Entitlement to an evaluation in excess of 10 percent for right knee instability for the period beginning August 20, 2019 is remanded. FINDINGS OF FACT 1. An unappealed March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s entitlement to service connection for a low back disability based on the determination that the evidence did not show that the Veteran’s current diagnosis of a back disability and a link or nexus between the current disability and service. 2. The evidence received since the March 1998 rating decision, to include treatment records showing the Veteran’s current low back diagnosis and the Veteran’s May 2020 testimony regarding the onset of his back condition, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran’s service connection claim for a low back disability. 3. The Veteran’s current left knee condition is as likely as not secondary to his service-connected right knee disability. 4. The preponderance of the evidence of record is against finding that the Veteran has had a current diagnosis related to pharynx that is distinguishable from his service-connected allergic rhinitis at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence is against finding that the Veteran’s right elbow condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The March 1998 rating decision, which denied the Veteran’s claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2019). 2. The evidence received since the March 1998 rating decision is new and material, and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a left knee disability as due to service-connected right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for service connection for pharyngitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 5. The criteria for service connection for a right elbow condition (previously claimed as right forearm lipoma) have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to December 1997. This case is before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and May 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. Reopening service connection claim for a low back disability Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to VA, and “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. 38 C.F.R. § 3.156(a) (2019). 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. Id. In a March 1998 rating decision, the RO previously denied the Veteran’s service connection claim for a low back disability. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2019). The Board finds that VA received new and material evidence since the prior final March 1998 rating decision denying the Veteran’s entitlement to service connection for a low back disability. The new and material evidence includes treatment records showing the Veteran’s current diagnoses involving low back and the Veteran’s May 2020 testimony regarding the onset of his back condition. The evidence is new as it was not considered at the time of the prior final denial of the Veteran’s claim, and the new evidence is material as it reasonably substantiates the current disability and nexus elements, which were not established at the time of the prior denial. See March 1998 Rating Decision. Consequently, the Veteran’s claim for service connection for a low back disability is reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2019). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Left knee disability The Veteran contends that his current left knee condition is secondary to his service-connected right knee disability. The Board notes that the record shows the Veteran’s current diagnosis of degenerative arthritis of the left knee. See e.g., October 2019 Knee and Lower Leg Disability Benefits Questionnaire (DBQ). As to the causal relationship between the Veteran’s current left knee disability and his service-connected right knee disability, the Veteran submitted a September 2019 medical opinion by Dr. P.B. See September 2019 September 2019 Knee and Lower Leg Conditions DBQ. Dr. P.B. opined that it is as likely as not that the Veteran’s current left knee symptoms are secondary to his service-connected right knee disability as due to compensatory stresses and muscle imbalances from the chronic right knee pain. The Board finds Dr. P.B.’s opinion to be competent and credible evidence and assigns probative weight as Dr. P.B. rendered the opinion after reviewing the Veteran’s medical records and radiologic reports. The Veteran underwent a VA examination in October 2019, but no medical opinion regarding the Veteran’s left knee condition was provided by the October 2019 VA examiner. Based on above, the Board resolves any reasonable doubt in the Veteran’s favor and finds that the Veteran’s entitlement to service connection for a left knee disability as due to service-connected right knee disability is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. Pharyngitis The Veteran is seeking service connection for pharyngitis, but he did not provide any specific contentions as to the claim. The evidence of record, including an April 2018 DBQ report submitted by the Veteran, does not show any diagnosis related to pharynx. For example, in the April 2018 DBQ report submitted by the Veteran, a private medical provider did not indicate that the Veteran has any pharyngeal injuries or a pharynx condition. See April 2018 Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ, at 1-2 (only current diagnoses noted were allergic rhinitis and chronic sinusitis). The Board notes that the Veteran is currently service-connected for allergic rhinitis. Therefore, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had a current diagnosis related to pharynx that is distinguishable from his service-connected allergic rhinitis at any time during or approximate to the pendency of the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for pharyngitis is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. Right elbow condition The Board notes that the Veteran initially claimed service connection for right forearm lipoma. See March 2017 Application for Disability Compensation and Related Compensation Benefits. However, during the May 2020 hearing, the Veteran testified that he does not know what lipoma is, and the only right forearm condition that he has is severe arthritis in the right elbow. See May 2020 Hearing Transcript, at 8-10. Thus, the Board recharacterized the issue on appeal as the Veteran’s entitlement to service connection for a right elbow condition (previously claimed as right forearm lipoma). The record shows the Veteran’s complaints of swelling and pain in the elbows. See e.g., January 2015 Referral Note; November 2017 Primary Care Nursing Outpatient Note. As such, the Board resolves reasonable doubt in the Veteran’s favor and finds that the first Shedden element for service connection is met. However, the Veteran’s service treatment record (STR) does not show any complaints, diagnosis, or treatments related to a right elbow condition. Also, the evidence of record does not contain any contentions regarding a right elbow injury or an onset of right elbow symptoms in service. The Board notes that a VA medical opinion regarding the nexus between the Veteran’s current right elbow condition and his active duty service has not been obtained. However, the Board finds that obtaining the VA medical opinion is not necessary to make a decision on this claim, since no competent evidence of any in-service injury or incurrence of a right elbow condition is on record to trigger the need for an additional medical opinion. See 38 U.S.C. § 5103A (2012). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s right elbow condition began during active service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for a right elbow condition (previously claimed as right forearm lipoma) is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS FOR REMAND 1. Low back disability As discussed above, the Veteran service connection claim for a low back disability is now reopened. However, the Board finds that more development is necessary prior to final adjudication. The Veteran was not afforded a medical examination or a medical opinion for low back conditions. In this regard, the record shows the Veteran’s current low back diagnoses and his competent testimony of experiencing back pain in service. Also, the Veteran’s STR shows in-service complaints of low back pain. See May 29, 1987 STR (the Veteran had lower back pain for 3 days); December 11, 1987 STR (low back pain noted); August 7, 1993 STR (low back pain for 2 days); September 10, 1997 Report of Medical History (the Veteran answered positive for recurrent back pain; low back pain on and off for 4 years noted). Therefore, an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran’s current low back disability must be obtained in order to make a fully informed decision. 2. Left hip condition During the May 2020 hearing, the Veteran competently testified that his current low back pain radiates down to his left hip. Thus, because a decision on the remanded issue of the Veteran’s entitlement to service connection for a low back disability could significantly impact a decision on the issue of service connection for a left hip condition, the issues are inextricably intertwined. A remand of the service connection claim for a left hip condition is also required. 3. Chronic headaches In regard to the Veteran’s service connection claim for chronic headaches, the Veteran underwent a VA examination in December 2017, and the examiner provided a negative nexus opinion. However, the Board notes that the Veteran submitted a DBQ for headaches in May 2020. In the DBQ report, a private medical provider provided a positive nexus opinion and stated that the Veteran’s service-connected sleep apnea has more likely than not contributed to the severity of his daily headaches. The Board notes that the possible the aggravation of the Veteran’s headaches symptoms due to his service-connected sleep apnea has not been addressed in the previous December 2017 VA medical opinion. As such, an addendum opinion from the December 2017 VA examiner or another appropriate medical examiner must be obtained in response to the May 2020 private opinion. 4. Increased rating claim for a right knee disability The Veteran is seeking a higher evaluation for his service-connected right knee disability. The Board notes that the RO increased the evaluation for right knee degenerative spurs status post meniscal tear from 10 percent to 30 percent, effective August 20, 2019, and granted an additional evaluation under Diagnostic Code 5257 for right knee instability, effective August 20, 2019. See November 2019 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Also, the Board has recharacterized issues on appeal to reflect the staged ratings based on the decisions made by the RO during the period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that the additional evaluation under Diagnostic Code 5257 for right knee instability was granted by the RO in August 2019. In this regard, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Board notes that the amendments included revisions to Diagnostic Code 5257. Because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria under 5257, the Board finds that a new examination to evaluate the current severity of the Veteran’s right knee disability is warranted prior to final adjudication of the matter. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran’s current low back condition. The examiner must review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner must opine whether the Veteran’s current low back condition is at least as likely as not (50 percent or greater probability) related to his active duty service or had its onset in service. (b.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) The examiner must provide a complete written rationale for any opinion offered. 2. The AOJ must obtain an addendum opinion from the December 2017 VA examiner regarding the Veteran’s service connection claim for chronic headaches. If the December 2017 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current headaches condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner must opine whether the Veteran’s current headaches condition is at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by his service-connected obstructive sleep apnea. (c.) The examiner specifically is asked to consider and address the DBQ for headaches submitted by the Veteran in May 2020, including the medical opinion provided by the private medical provider. (d.) The examiner must provide a complete written rationale for any opinion offered. 3. The AOJ must schedule the Veteran for an examination by an appropriate medical examiner to determine the current severity of his service-connected right knee disability. The examiner must review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner should provide a full description of the Veteran’s right knee disability and report all signs and symptoms necessary for evaluating it under the new rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (b.) The examiner is specifically asked to provide: 1) whether the Veteran has had sprain, incomplete ligament tear, or repaired complete ligament tear related to his right knee disability; 2) whether the Veteran has had unrepaired or failed repair of complete ligament tear causing persistent instability related to the right knee disability; and 3) whether the Veteran requires prescription by a medical provider for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation due to his right knee disability. (c.) The examiner is also asked to provide: 1) whether the Veteran has a diagnosed right knee condition involving the patellofemoral complex with recurrent instability (with or without surgical repair); and 2) whether the Veteran requires a prescription from a medical provider for a brace, cane, or walker for the patellar instability. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected right knee patellofemoral syndrome with meniscal and anterior cruciate ligament tear and degenerative arthritis and discuss the effect of the disability on any occupational functioning and activities of daily living. (e.) The examiner must provide a complete written rational for any opinion rendered. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms or functional impairments without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. After completing the above actions and any other necessary development, the issues on appeal, including the inextricably intertwined issue of service connection claim for a left hip disability, must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.