Citation Nr: 21027246 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 08-37 113 DATE: May 5, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a bilateral knee disability is reopened and, to that extent, the claim is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to a temporary total evaluation for a left knee disability requiring convalescence is remanded. Entitlement to a disability rating in excess of 10 percent for hydronephrosis is remanded. Entitlement to service connection for a heart disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. In a November 2006 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) declined to reopen the claim of service connection for a bilateral knee disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the November 2006 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee disability. CONCLUSION OF LAW The criteria for reopening the previously denied claim for service connection for a bilateral knee disability are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by a VA RO. In February 2012, the Board denied the claims listed above. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the Board's decision and remand the matters to the Board for further action. In April 2015, the Board remanded the claims for development in compliance with the JMR. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral knee disability. 2. The RO originally denied the Veteran's claim of service connection for a bilateral knee disability in a March 1983 rating decision, and most recently declined to reopen the claim in a November 2006 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2006). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 evidence received since the November 2006 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted a private medical opinion in July 2015 in which a physician opined that the Veteran's bilateral knee disability is related to service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND While further delay is regrettable, the Board finds remand is necessary before a decision may be rendered with respect to the remaining issues on appeal. 1. Entitlement to service connection for a bilateral knee disability is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to a temporary total evaluation for a left knee disability requiring convalescence is remanded. As noted above, the Veteran submitted a positive private opinion in connection with his claims for entitlement to service connection for a bilateral knee disability and a back disability. However, this opinion is conclusory in nature and does not provide a sufficient rationale. Since the Veteran's service treatment records reflect complaints of knee trouble and back pain and he has current diagnoses of knee and back disabilities, the Board finds remand is warranted so that VA opinions may be obtained. The Veteran has also asserted that his back disability may be related to his knee disability and that he should be awarded a temporary total evaluation for a left knee disability requiring convalescence. As the Veteran's knee disability claim is remanded for further development, these matters are inextricably intertwined. 4. Entitlement to a disability rating in excess of 10 percent for hydronephrosis is remanded. The Veteran's service-connected hydronephrosis has not been evaluated by a VA examiner since August 2007. At that time, the examiner noted no current evidence of hydronephrosis. However, as nearly 14 years have passed and treatment records reflect kidney complaints, the Board finds remand is necessary in order to obtain a VA examination addressing the current nature and severity of the disability. 4. Entitlement to service connection for a heart disability, to include as secondary to service-connected disability, is remanded. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. The Veteran has asserted that he has a heart disability and hypertension related to his service-connected hydronephrosis. While the Veteran underwent VA examination in connection with his hypertension claim in August 2007, as noted above the examiner found no evidence of hydronephrosis so did not provide an opinion. There is currently insufficient information for the Board to decide these claims. As such, the Board finds remand is warranted so that VA opinions may be obtained with respect to these claims. The Veteran submitted a private medical opinion relating hypertension to his back and knee disabilities. As entitlement to service connection for these disabilities is remanded herein, the matters are inextricably intertwined. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should be obtained and associated with the file. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected hydronephrosis. The claims file should be reviewed by the examiner. To the extent possible, the examiner should comment on the nature and severity of hydronephrosis since the last VA examination in August 2007. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right and/or left knee disability had onset during service or is otherwise related to an in-service injury, event, or disease. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability had onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current disability of the back is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) a knee disability. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hypertension had onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether hypertension is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected hydronephrosis or by a back and/or knee disability. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 6. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current heart disability had onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current disability of the heart is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected hydronephrosis. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.