Citation Nr: 21024262 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-31 086A DATE: April 22, 2021 ORDER The petition to reopen the previously denied claim for service connection for degenerative joint disease (DJD) of the bilateral knees is granted. REMANDED Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for a gastroesophageal disorder, claimed as gastroesophageal reflux disease (GERD) due to an undiagnosed Gulf War illness, is remanded. FINDING OF FACT An unappealed May 2009 rating decision denied service connection for DJD of the bilateral knees; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The May 2009 decision denying the claim for service connection for DJD of the bilateral knees is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, with active military service from October 1982 to January 1983 and January 2003 to April 2004, during the Gulf War Era. The Veteran was awarded two Army Achievement Medals and an Army Commendation Medal for contributions that directly related to success during Operation Iraqi Freedom (OIF). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing. A hearing transcript is associated with the claims file. In June 2019, the Board remanded the Veteran’s claim for entitlement to service connection for GERD, and denied reopening the previously denied claim for entitlement to service connection for DJD of the bilateral knees. The Veteran appealed the denial of reopening the previously denied claim for entitlement to service connection for DJD of the bilateral knees. In November 2020, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s June 2019 decision as to the denial of reopening the previously denied claim for entitlement to service connection for DJD of the bilateral knees. The case was returned to the Board for compliance with the terms of the JMPR. Whether new and material evidence has been received to reopen a previously denied claim for service connection for DJD of the bilateral knees. The Board concludes that the May 2009 rating decision denying the claim for entitlement to service connection for DJD of the bilateral knees is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Here, the September 2008 rating decision denied service connection for DJD of the bilateral knees, because the evidence showed no DJD in the knees during active service or within the initial post-separation year, or that the disease was otherwise related to any in-service injury or disease. The evidence considered at that time included the Veteran’s original November 2007 VA disability claim, service treatment records (STRs), an August 2008 VA examination revealing DJD of the bilateral knees. VA notified the Veteran of the rating decision in a September 2008 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the September 2008 rating decision denying service connection for DJD of the bilateral knees became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In January 2009, the Veteran filed a petition to reopen the claim based on new medical evidence. A May 2009 rating decision confirmed and continued the September 2008 denial of the Veteran’s claim, because the evidence submitted did not tend to establish that DJD of the bilateral knees was incurred in or aggravated by active service. The evidence considered at that time included the Veteran’s original November 2007 VA disability claim, STRs, an August 2008 VA examination revealing DJD of the bilateral knees, a November 2008 MRI of the left knee, November 2008 private treatment records and VA treatment records. A May 2009 VA letter notified the Veteran of the May 2009 decision and how to appeal. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. Therefore, the May 2009 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Evidentiary submissions received since the last prior final disallowance includes new and material evidence. Specifically, a May 2013 VA examination coupled with the Veteran’s wife’s November 2018 statement and the Veteran’s November 2018 Board hearing testimony constitute new and material evidence. The May 2013 VA examination documents the Veteran having bilateral knee pain with diagnosis dating to 2003, and assessed at the examination as bilateral slight recurrent patellar subluxation/dislocation; bilateral patellofemoral syndrome; and a left knee meniscal tear with chondromalacia of the left knee. See VA Examination (May 2013). The Veteran’s wife’s statement that the Veteran did not complain of knee pain prior to his deployment in 2003 and began to complain of knee pain not relieved by Tylenol upon his return from deployment in 2004, as well as the Veteran’s testimony of continued knee problems after leaving active duty although not initially seeking treatment and self-medicating both concern a theory of entitlement to service connection based on continuity of symptomatology. Because the recent evidentiary submissions, medical evidence and lay testimony, tend to suggest that the Veteran may have had continuity of bilateral knee symptoms since service, as well as additional knee diagnoses, and this evidence was not previously before VA adjudicators at the time of the prior final disallowance, it constitutes new and material evidence. See Velez v. Shinseki, 23 Vet. App. 199 (2009); Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (While a new theory of entitlement cannot be the basis to reopen a claim under 38 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108). Here, (1) the new theory of entitlement of continuity of symptomatology is accompanied by medical and lay evidence, and (2) the evidence shows additional diagnoses of the knees, other than previously addressed DJD. See Boggs, 520 F.3d at 1335 (“It follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim.”). It is noted that the language of 38 C.F.R. § 3.156(a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee disability. The Veteran contends that his bilateral knee disability resulted from undue strain on his knees related to the heavy gear he had to wear and carry and rigorous nature of his duties. The Veteran asserted in a December 2013 statement in support of claim that he did not have knee pain prior to deployments to Iraq during Operation Iraqi Freedom/Operation Enduring Freedom (OIF/OEF), and that it only began upon return from deployment. At a November 2018 Board hearing, the Veteran testified that while deployed in Iraq his left knee would become painful and swell after rigorous work and exercise. See Hearing Transcript (November 2018). He also testified that he had the condition throughout service and that it continued after service. Id. The Veteran’s wife submitted a November 2018 statement that the did not complain of any knee pain prior to his deployment to Iraq, and began to complain of knee pain upon his return. See VA 21-4138 Statement In Support of Claim (November 2018). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is uncontroverted that the Veteran has current diagnoses of bilateral knee disability, including bilateral DJD; bilateral slight recurrent patellar subluxation/dislocation; bilateral patellofemoral syndrome; and a left knee meniscal tear with chondromalacia of the left knee. STRs reflect that, at the time of enlistment into the Army National Guard in August 1982, the Veteran was in good health. See STR-Medical (December 2007). In his Report of Medical History, the Veteran marked having leg cramps. Id. A March 1999 periodic examination showed normal lower extremities. Id. The Veteran denied reported swollen or painful joints. Id. He was found qualified for retention. Id. An October 2002 annual medical certificate for retention in the Army National Guard shows that the Veteran reported no medical problems. Id. In February 2003, in a pre-deployment health assessment, the Veteran indicated that his health was very good, he did not have any health problems, he was not on profile or light duty, or undergoing a medical board. Id. The Veteran was not referred for any health problems and was deemed deployable. Id. A March 2003 STR shows that the Veteran’s left knee was x-rayed upon the Veteran’s reports of pain and swelling; it was found to be normal. Id. Post-service treatment records reflect treatment for bilateral knee pain in February 2007, including joint pain, diagnosed as DJD of bilateral knees. See Medical Treatment Record - Non-Government Facility (November 2007). Knee crepitus and effusion in the left knee were noted. Id. The Veteran was prescribed knee braces in September 2007. See CAPRI (November 2018). A November 2008 private x-ray of the left knee showed tiny undersurface tear involving the posterior horn of the medial meniscus; chondromalacia of the medial compartment; and mild-to-moderate joint effusion. See Medical Treatment Record - Non-Government Facility (January 2009). An August 2008 VA examination shows a diagnosis of DJD of bilateral knees and concludes that “given his current age and occupation it would be mere speculation for me to state whether ir not this was a direct cause of his deployment to Iraq. There are too many factors that go into these conditions and may very well be age appropriate chronic conditions.” See VA Examination (August 2008). A May 2013 VA examination diagnosed bilateral patellofemoral syndrome, mild to moderate, and minimal left knee meniscal tear with chondromalacia. See VA Examination (May 2013). Although an August 2008 VA examination was obtained, it is inadequate because the negative conclusions reached are not supported with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, the examination and opinion do not contain clear conclusions and provide no reasoned medical explanation connecting the conclusion to any identified supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the August 2008 VA examination concluded that an opinion could not be expressed without resort to speculation; however, the examiner did not indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). Therefore, the medical opinion is inadequate. The May 2013 VA examination is also inadequate as the VA examiner provided no etiology for the Veteran’s bilateral knee disability. A VA medical opinion is inadequate when the examiner fails to address the etiology of the claimed disability. Stewart v. Wilkie, 30 Vet. App. 383, 392 (2018). Given the above, and to ensure that VA has met its duty to assist, remand is necessary. 2. Entitlement to service connection for a gastroesophageal disorder, to include GERD. The Veteran contends that his GERD is due to an undiagnosed Gulf War illness as symptoms did not appear until after being deployed to Iraq in OIF/OEF during the Persian Gulf War. He also contends that he is entitled to service connection for GERD on a direct basis as the symptoms began in service, and he has a current diagnosis of GERD. See Hearing Transcript (November 2018). He stated he had GERD-like symptoms in service, including constantly having an upset stomach, being unable to eat anything, and having constant spasms. Id. He reported being treated for stomach problems in service with stomach acid medication. Id. He also reported that he continued to have stomach problems after service, but did not seek treatment and it with over-the-counter medication. Id. In a November 2018, he Veteran’s wife stated that, prior to service, the Veteran never took medication or showed signs or complained of stomach issues. See VA 21-4138 Statement In Support of Claim (November 2018). She also stated that his condition began soon after separation from service. Id. The Board finds that remand is again necessary as the January 2020 VA examinations are inadequate to decide the appeal. 38 C.F.R. § 3.159(c); Stegall v. West, 11 Vet. App. 268 (1998). Initially, as previously noted, the Veteran qualifies as a Persian Gulf Veteran as his service personnel records confirm he served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.§ 1117(f); 38 C.F.R.§ 3.317(e). STRs reflect that, at the time of enlistment into the Army National Guard in August 1982, the Veteran was in good health. See STR-Medical (December 2007). A March 1999 periodic examination showed normal Genitourinary system. Id. The Veteran denied frequent indigestion and stomach problems. Id. He was found qualified for retention. Id. An October 2002 annual medical certificate for retention in the Army National Guard shows that the Veteran reported no medical problems. Id. In February 2003, in a pre-deployment health assessment, the Veteran indicated that his health was very good, he did not have any health problems, he was not on profile or light duty, or undergoing a medical board. Id. The Veteran was not referred for any health problems and was deemed deployable. Id. In its June 2019 remand, the Board found that the May 2013 and August 2014 VA examinations were inadequate and remanded the Veteran’s claim for a new VA examination. See BVA Decision (June 2019). However, the January 2020 VA examinations have not adequately answered the questions posed by the Board. See Stegall, supra. First, the January 2020 VA examinations are inadequate as the examiner’s rationale relied on the absence of GERD during the Veteran’s service as the basis for the negative opinion. The VA examiner opined that the Veteran’s GERD is not caused by service as there is no record of in-service complaints or treatment of GERD. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Second, the Board specifically requested the examiner to “obtain a complete medical history of symptoms and consider this in formulating his/her opinion; if the examiner rejects any medical history of symptoms, he/she must explain the reasons.” In response, the January 2020 VA examination noted the Veteran’s reported date of onset as “around 2000” as well as the Veteran’s description of symptoms, but did not consider these in formulating the etiological opinion, instead stating that “there is no indication that he was seen, diagnosed, or had symptoms of GERD in his active-service records.” See C&P Exam (January 2020). The January 2020 VA examinations do not reflect any meaningful consideration of lay statements indicating that the Veteran began experiencing symptoms of GERD in service and has since experienced similar symptoms. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Third, the January 2020 VA examination were based on general medical knowledge addressing the Veteran’s specific disability picture. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). The examiner indicated that, “GERD is known to be caused by acid reflux from the stomach into the esophagus. There is no known link between service in Southwest Asia and GERD.” The opinion here provides no clear conclusion and no adequate application of the medical knowledge to the Veteran’s particular circumstances. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Given that the January 2020 VA examinations did not provide an adequate answer to the question posed by the Board of whether any diagnosed stomach and gastroesophageal disorders found, including GERD, at least as likely as not had its onset during active service or is otherwise related to an in-service injury, event, or disease, and provided inadequate answers to the Board’s other questions, remand is necessary. See Stegall, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Lastly, the Board finds that there has not been substantial compliance with its June 2019 remand instructions in regard to obtaining VA treatment records from September 2017 to the present, as no record from September 2017 on have been associated with the Veteran’s file. See Stegall, supra. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2017 to the Present. 2. Thereafter, schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of all bilateral knee disabilities diagnosed during the appeal period. The report of examination should, among other things, include a discussion of the Veteran’s documented history and assertions, including the Veteran’s reports of continuity of symptoms since service and the Veteran’s wife’s observations of the Veteran’s bilateral knee pain shortly after service. The examiner must opine on: (a.) Whether each diagnosed disability at least as likely as not (1) had its onset in service or (2) is otherwise related to an in-service injury, event, or disease, including the reported wear and tear as well as documented March 2003 reports of left knee pain and swelling. (b.) If arthritis is diagnosed, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed GERD, and any other stomach and gastroesophageal disorder. The examiner should obtain a complete medical history of symptoms and consider this in formulating his/her opinion; if the examiner rejects any medical history of symptoms, he/she must explain the reasons therefor. The examiner should opine (a.) Whether the Veteran’s GERD at least as likely as not had its onset during active service or is otherwise related to an in-service injury, event, or disease. (b.) Whether the Veteran had a gastroesophageal disorder, other than GERD, due to an undiagnosed illness. (c.) Whether this Veteran’s gastroesophageal disability pattern, other than GERD, is consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, to include a functional gastrointestinal disorder (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. i. If the examiner determines that this Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then he or she must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to his active service, to his active duty in Southwest Asia. in-service injury, event, or disease. NOTE 1: A negative medical opinion may not be predicated solely on the absence or lack of in-service complaints, treatment, or findings. (Continued on the next page)   NOTE 2: Reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate. 4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.