Citation Nr: 21014683 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-36 930 DATE: March 15, 2021 ORDER The previously denied claim of entitlement to service connection for a right knee disorder is reopened. REMANDED Entitlement to an evaluation higher than 10 percent for the service-connected right ankle subtalar arthritis status post ankle calcaneus fracture (right ankle disorder) is remanded. Entitlement to service connection for a back disorder, to include as secondary to service-connected right ankle disorder is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right ankle disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected right ankle disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT 1. In an April 2009 rating decision, the RO denied service connection for a right knee disorder. The Veteran submitted new and relevant service department records within a year of the April 2009 decision that were considered in a January 2011 statement of the case (SOC). The Veteran did not perfect an appeal or submit new or material evidence within 60 days of the SOC. 2. Evidence received since the April 2009 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a right knee disorder. CONCLUSION OF LAW 1. The April 2009 rating decision denying service connection for a right knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a right knee disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from January 1975 until April 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2020 and a transcript of the proceeding is of record. 1. The previously denied claim of entitlement to service-connection for a right knee disorder is reopened. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an April 2009 rating decision, the RO denied service connection for a right knee disorder because there was no link between the currently diagnosed right knee disorders and the Veteran’s period of service. The January 2011 SOC also found that the right knee disorder was unrelated to the right ankle disorder. The Veteran did not perfect an appeal or submit new and material evidence within 60 days of the SOC. The April 2009 rating decision with January 2011 SOC is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The evidence of record at the time of the April 2009 rating decision with January 2011 SOC did not show a right knee disorder was related to the Veteran’s period of service or the right ankle disorder. Those records included STRs, VA treatment records, and two VA examination reports. The STRs do not contain any record of right knee complaints or treatment. The VA treatment records generally show right knee pain and the Veteran’s assertion the knee pain was chronic for 15 years since an in-service injury. See January 2009 and September 2009 VA treatment notes. A February 2009 VA examination report documents the Veteran’s personal history of right knee pain since service that the Veteran attributed to a right ankle injury. A December 2010 VA examiner opined that right knee strain was not etiologically related to the Veteran’s period of service or to the in-service right ankle injury. The examiner reasoned that right knee strain is a separate entity and not due to the right subtalar arthritis because the Veteran had no complaints of knee pain at the time of injury or while in service, or within 20 years of separation from service. In addition, these two conditions are not biomechanically at risk of injury. The evidence received since the April 2009 rating decision includes VA treatment records and the 2020 hearing testimony. May 2011 VA treatment records document right ankle pain and limited motion with gait difficulty. At the December 2012 hearing, the Veteran reported that his ankle was bent to the right and affected his gait, and that the right knee disorder was caused or aggravated by the right ankle symptoms and altered gait. The Board finds that new and material evidence has been presented. The evidence, including the VA treatment record and hearing testimony, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence indicating a right knee condition may be caused or aggravated by the right ankle disorder due to an altered gait. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to an evaluation higher than 10 percent for the service-connected right ankle disorder is remanded. This issue is remanded to obtain an VA examination to assess the current severity of the right ankle disorder. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was afforded a VA examination in December 2010 for the right ankle. The Veteran failed to report for a VA examination in 2015 because he did not have transportation and it does not appear an attempt was made to reschedule. See July 2015 VA visit summary. At the 2020 hearing he expressed desire to have the right ankle disorder reevaluated because it had worsened. On remand, VA should schedule an examination to determine the current severity of the right ankle disorder. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected right ankle disorder is remanded. 3. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right ankle disorder is remanded. These issues are remanded to obtain an addendum opinion on whether a back or left knee disorder is caused or aggravated by the service-connected right knee disorder. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here there is evidence of a left knee disorder, symptoms of a low back disorder, and an indication a left knee or lower back disorder may be related to service. VA treatment records show left knee osteoarthritis and symptoms of intermittent back pain. See May 2011 and January 2013 VA treatment records. Thus, remand for a VA examination is required. 4. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected right ankle disorder is remanded. This issue is remanded for an addendum opinion that addresses the Veteran’s contention the right knee disorder is caused or aggravated by the altered gait and altered body mechanics due to the right ankle. Prior VA examiners addressed whether the right knee injury was due to the Veteran’s period of service, to include the in-service right ankle injury, but have not addressed the altered gait/body mechanics theory of entitlement. Further, the 2010 VA examiner only provided an opinion for right knee strain, although there are other right knee diagnoses mentioned in the medical records. Thus, an addendum opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 5. Entitlement to a TDIU is remanded. The Veteran asserts he is unable to work due to the right ankle and bilateral knee conditions. Thus, the claim of entitlement to a TDIU is inextricably intertwined with other issues remanded herein. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. (a.) The examiner must test the range of motion and pain of the left knee in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b.) The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed back and left knee disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a left knee or back disorder had onset in, or is otherwise related to, active military service. (b.) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that a left knee or back disorder is caused or aggravated by the service-connected right ankle disorder. (c.) The examiner must specifically address the Veteran’s assertions the he has an altered gait and altered body mechanics due to the right ankle that placed a strain on the back and left knee; and relevant VA treatment records, including those dated May 2011 (noting back pain, left knee pain, and altered gait), March 2012 (noting left knee pain for 5 to 6 years), and April 2012 (for a left knee arthroscopic medial meniscectomy and plicectomy). 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) Clarify all right knee disorders present from 2015. (b.) For each disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder is caused or aggravated by the Veteran’s period of active service. (c.) For each disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder is caused or aggravated by the right ankle disorder. (d.) The examiner must specifically address the Veteran’s assertions the he has an altered gait and altered body mechanics due to the right ankle that placed a strain on the right knee; and relevant VA treatment records dated January 2009 (reporting a history of right knee injury in service and current diagnosis of mild degenerative joint disease and slight calcified menisci), September 2009 (including MRI findings of increased signal in the posterior horn of the medial meniscus that may represent chronic degenerative tear, and possible bursitis/cyst of the infrapatellar region), and May 2011 (noting gait difficulty). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.