Citation Nr: 21026727 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-47 175 DATE: May 3, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a right knee disorder has been reopened. New and material evidence having been received, the claim for entitlement to service connection for a left knee disorder has been reopened. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. FINDINGS OF FACT 1. In a July 2011 rating decision, the RO denied service connection for a right and left knee disorder. The Veteran did not appeal. 2. The evidence added to the record since the July 2011 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims for service connection for a right and left knee disorder. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied the claims for service connection for a right and left knee disorder is final. 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for a right and left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a Board Hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. A transcript is of record. 1. New and material evidence having been received, the claim for entitlement to service connection for a right knee disorder has been reopened. 2. New and material evidence having been received, the claim for entitlement to service connection for a left knee disorder has been reopened. In a July 2011 rating decision, the RO denied service connection for each a right and left knee disorder. The Veteran was notified of the July 2011 rating decision and of his appellate rights by letter dated August 3, 2011. He did not initiate an appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for perfecting an appeal). Moreover, new and material evidence was not of record within one year of this decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); see also 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). Accordingly, the July 2011 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, 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). The new evidence must neither be 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.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. In January 2020, the Veteran testified at a hearing before the Board where he testified that he believes his left and right knee disorders are secondary to his service-connected degenerative disk disease and spondylosis of the lumbar spine (low back disorder). He also submitted new private medical treatment records, including a March 2018 diagnosis of degenerative arthritis changes in the left knee with a large suprapatellar joint effusion. At the time of the July 2011 rating decision, there was no evidence of a diagnosis of a knee condition. Indeed, the lack of a diagnosis was part of the reason the Veteran was denied service connection. Additionally, the Veteran had not asserted a claim for service connection on a secondary basis at that time. Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate his claims, and raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156(a). Therefore, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right hip disorder is remanded. 4. Entitlement to service connection for a left hip disorder is remanded. Additional development is necessary with regard to the Veteran's claims. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide his claims so that he is afforded every possible consideration. The Veteran contends that he developed a knee disorder in each his right and left knee due to service. In particular, he testified that his knee conditions may be due to excessive running he did during active service. See January 2020 Hearing Transcript. He also testified that his right and left knee disorder may be secondary to his service-connected low back disorder, as his back condition causes him to "have an abnormal gait and walk kind of weird." See id. He has sought treatment for this with his private physician, with his physician noting he has "left knee pain when bends, pt thinks it has to do with his back pain and being out of meds." See March 2018 Private Medical Treatment Records. The Veteran has been diagnosed with right and left knee pain, as well as degenerative arthritis changes in his left knee with large suprapatellar joint effusion. See id. The Veteran has not yet received a VA examination to determine the etiology of his right and left knee disorder. The Board finds at least an indication that the Veteran may have a right and left knee disorder related to his active service. On remand, he should be afforded a VA examination to determine whether any right and left knee disorder is related to his active service. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). The Veteran also contends that he developed a right and left hip disorder related to his service-connected low back disorder. He has reported pain in his back and right hip as far back as 2002. See December 2002 CAPRI Medical Treatment Record. He again reported pain in his hips and lower back in March 2012. See March 2012 CAPRI Medical Treatment Record. The Veteran reported that he receives shots in his hips to alleviate his pain. See March 2014 Statement in Support of Claim. The Board notes that pain alone can constitute a disability because it can cause functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). On remand, the Veteran must be afforded a VA examination to determine whether any right and left hip disorder, if present, is related to his active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA medical treatment records from November 2014 forward. 2. Obtain the Veteran's complete medical treatment records from Lexington Medical and Midlands Orthopedics. 3. Schedule an appropriate VA compensation examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's bilateral knee disorder. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After reviewing the file and examining the Veteran, the examiner should diagnose any right and left knee disorder found to be present, specifically considering that pain alone may suffice, and discuss whether any right and left knee pain results in functional impairment such that the pain may be considered a disability for VA compensation purposes. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right and/or left knee disorder had its clinical onset during active service or is related to any incident of service, to include running. (b) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right and left knee disorder was either (i) caused by, or (ii) aggravated by the Veteran's service-connected low back disorder and bilateral lower extremity radiculopathy, to include by any alteration in station or gait associated therewith. * In providing the opinion concerning aggravation, the examiner is advised that aggravation may include temporary worsening, or flare-up, of a right and left knee disorder. 4. Schedule an appropriate VA compensation examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's right and left hip disorder. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After reviewing the file and examining the Veteran, the examiner should diagnose any right and left hip disorder found to be present, specifically considering that pain alone may suffice, and discuss whether any right and left hip pain results in functional impairment such that the pain may be considered a disability for VA compensation purposes. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right and/or left hip disorder was either (i) caused by, or (ii) aggravated by the Veteran's service-connected low back disorder and bilateral lower extremity radiculopathy, to include by any alteration in station or gait associated therewith. * In providing the opinion concerning aggravation, the examiner is advised that aggravation may include temporary worsening, or flare-up, of a right and left hip disorder. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.