Citation Nr: 21025374 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-56 982 DATE: April 28, 2021 ORDER New and material evidence having been received, the claim to reopen the previously denied claim for service connection for right knee disability, as secondary to the service-connected disability of ligamentous laxity, left knee, post-operative removal medial meniscus, trauma, is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for right knee disability, as secondary to the service-connected disability of ligamentous laxity, left knee, post-operative removal medial meniscus, trauma, is remanded. Entitlement to a rating evaluation in excess of 20 percent prior to October 28, 2019 and in excess of 30 percent from December 1, 2020, for service-connected left knee ligamentous laxity, post-operative removal medial meniscus, trauma, is remanded. FINDING OF FACT The Veteran’s claim for entitlement to service connection for right knee disability was previously denied in a December 1994 rating decision. The Veteran did not file an appeal, and the rating decision became final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the Veteran’s claim, and it is thus, reopened. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied claim for service connection for right knee disability, as secondary to the service-connected disability of ligamentous laxity, left knee, post-operative removal medial meniscus and trauma. 38 U.S.C. §§ 1110, 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from July 1980 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in February 2021. A transcript of the hearing is included in the electronic claims file. The Veteran’s initial claim for service connection for right knee disability was denied by the RO in a December 1994 rating decision. The Veteran did not file a timely appeal and as such, the December 1994 rating decision denying his claim became final. The Veteran subsequently requested the reopening of his claim in June 2014, with the submission of new treatment records relating to his claim. As its basis for the original denial of the Veteran’s right knee disability claim in the December 1994 rating decision, the RO reported that there was no trauma to his right knee and that no excessive stress due to problems associated with his service-connected left knee was shown. The Board notes that with regards to the Veteran’s left knee disability, that a February 2020 rating decision reflects that he was awarded a temporary evaluation of 100 percent effective October 28, 2019, the date of his total left knee replacement surgery, and an evaluation of 30 percent was assigned from December 1, 2020. New and Material Evidence - Reopening of right knee disability claim The documents associated with the Veteran’s file since his claim was originally denied includes treatment records for the period from May 2012 and findings from a November 2014 knee & lower leg VA examination. In addition, the Veteran testified during his February 2021 virtual Board hearing regarding the specific circumstances resulting in his right ACL meniscus tear injury and the worsening impact of his left knee disability on his right knee, leading to his October 2019 total left knee replacement surgery. Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, 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. 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(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. In its November 2014 rating decision, currently on appeal, the RO denied reopening of the Veteran’s claim, finding that the additional documents submitted (medical records from May 2012 to November 2014), fail to establish any new material fact. Although the November 2014 VA examination reflect no abnormalities with his right knee, it did reference that the Veteran had a meniscal tear of both the right and left knee, which (the right knee meniscal tear) was not referenced in his initial November 1994 VA examination. Further, his June 2012 treatment record specifically references a “[h]istory of right ACL tear followed conservatively by orthopedics with brace and physical therapy” indicating continuing treatment for his right knee. In addition, the Veteran testified during his February 2021 virtual Board hearing that his right ACL tear resulted while he was trying to avoid stepping on his left knee that was already unstable, falling in the process and thereby causing trauma to his right knee. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds these references to be both new and material because they were not of record at the time of the original denial of his claim and allude to the fact that the Veteran had previously experienced some trauma to the right knee, which the Board finds is a sufficient basis to warrant the reopening of the Veteran’s right knee disability claim for further development which could lead to the substantiation of his claim. The evidence is new in that it was not of record at the time of the last final rating decision in December 1994, and the evidence is “material” because it relates to unestablished facts necessary to substantiate the underlying service connection claim. 38 C.F.R. § 3.156(a). Further, the Board is not bound by the RO’s findings regarding whether the claims should be reopened and must nevertheless independently consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the credibility of new evidence is generally presumed, the Veteran’s claim of entitlement to service connection for groin injury is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). However, adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received. For the reasons detailed in the remand section below, additional development is required for a full and fair adjudication of the underlying service connection claim. REASONS FOR REMAND 1. Right Knee Since the Veteran’s last VA afforded examination (November 2014), the Veteran has submitted treatment records that reflects reference to a “[h]istory of right ACL tear followed conservatively by orthopedics with brace and physical therapy” and progress notes reflecting the Veteran’s complaints of worsening right knee pain. The Veteran testified during his February 2021 virtual Board hearing that his right ACL tear resulted while he was trying to avoid stepping on his left knee that was already unstable, falling in the process and thereby causing trauma of his right knee. Therefore, the Board finds that a new VA examination is necessary to thoroughly evaluate the current nature and etiology of the Veteran’s right knee disability, including the torn ACL meniscal tear. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Left Knee The Veteran’s last VA compensation examination to evaluate his left knee was in November 2014, and he subsequently underwent total left knee replacement surgery in October 2019. As such, he has not had a VA examination since his total left knee replacement surgery. Further, the Veteran testified during his February 2021 Board virtual hearing about observed changes with regards to his pain level and ability to bend and straighten his left knee prior to and after his October 2019 total left knee replacement surgery. The Veteran also testified that he is now receiving Social Security Administration benefits for his left knee disability. Therefore, this issue must also be remanded so that the Veteran can be afforded a new VA examination, particularly to determine the current severity of his left knee disability after the convalescence period following his left knee replacement and to obtain his Social Security Administration records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s Social Security Administration records, and with the Veteran’s assistance, any outstanding, relevant treatment records. Any attempts to obtain such records should be documented in the claims file. 2. Schedule the Veteran for a VA examination by an appropriate examiner with sufficient expertise to determine the severity and etiology of his left and right knee disabilities respectively. The entire claims file, including a copy of this remand, must be made available to the examiner for review, and the VA examination report should reflect that such review was accomplished. All necessary tests should be conducted. Following such review, the examiner is asked to provide the following responses: 1) With regard to the right knee, confirm whether or not the Veteran has a current right knee disability, including torn meniscus, knee strain, sprain and arthritis. a) If so, opine whether it is as least as likely as not (50 percent probability or more) that the Veteran’s current right knee disability had its onset in service or is otherwise the result of an incident in service. b) Also, opine whether it is as least as likely as not (50 percent probability or more) that the Veteran’s right knee disability has been aggravated (permanently worsened) by the Veteran’s service-connected left knee disability. Specifically, whether such aggravation could have resulted from putting more weight on his right knee due to the Veteran’s service-connected left knee disability. If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. was caused by the military service. 2) With regard to the determining the severity of the Veteran’s service-connected left knee disability, the examiner should consider all evidence of record, including his orthopedic and treatment records, and the Veteran’s lay statements (particularly during his February 2021 virtual hearing) regarding his symptoms prior to and after his October 2019 total left knee replacement surgery, such as, his pain level, and his ability/inability to bend and/or straighten his left knee. 3) For both knees, all pertinent symptomatology and findings should be reported in detail, including range of motion (ROM) testing. The VA examiner should then set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the knees due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. The examiner should also test the range of motion in active and passive motion, with weight-bearing, and nonweight-bearing. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is advised that the Veteran is considered competent to be able to report about his injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4) Then, following any necessary additional development, the Agency of Jurisdiction (AOJ) should readjudicate the Veteran’s claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.