Citation Nr: 21027667 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-58 965 DATE: May 6, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a bilateral knee disorder is granted. REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to a rating in excess of 50 percent prior to June 25, 2019, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for status post left wrist fracture, healed, with residual mild chronic tendonitis, is remanded. FINDINGS OF FACT 1. In a final rating decision issued in March 2011, the Agency of Original Jurisdiction (AOJ) denied service connection for a bilateral knee disorder, characterized as bilateral knee strain with right knee pain. 2. Evidence added to the record since the final March 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral knee disorder. CONCLUSIONS OF LAW 1. The March 2011 rating decision that denied service connection for a bilateral knee disorder, characterized as bilateral knee strain with right knee pain, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral 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 1992 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived AOJ consideration of the evidence associated with the record since the issuance of the September 2017 statement of the case. The undersigned also held the record open for 60 days for the submission of additional evidence, which was received in January 2021. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a bilateral knee disorder. By way of background, VA received the Veteran's original claim for service connection for a bilateral knee disorder in September 2010. In a March 2011 rating decision, the AOJ considered the Veteran's service treatment and personnel records, lay statements, and VA treatment records. The AOJ noted that the Veteran's STRs did not reflect treatment, complaint, or a diagnosis referable to his knees and, while contemporaneous VA treatment records demonstrated a current right knee disorder, the evidence failed to show a current disability of the bilateral knees that occurred in or was caused by service. Thus, the AOJ denied service connection for bilateral knee strain with right knee pain. Later the same month, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. In this regard, while additional VA treatment records were received within a year of the March 2011 rating decision, such include only findings duplicative of those previously of record. Therefore, such decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the March 2011 rating decision includes additional VA and private treatment records, and the Veteran's lay statements, to include his testimony at the November 2020 Board hearing. In this regard, he reported that, as a plane captain in service, he performed maintenance, to include inspections around aircrafts and engine service, which resulted in wear and tear on his knees, and injured his right knee when he: (1) fell 12 feet from an aircraft to the ground in October 1993, which resulted in his service-connected fracture to the left wrist, and (2) went up a stairwell on the ship, hit his head, fell, and slid down. He also indicated that he continued to experience right knee pain following his separation, which eventually affected his left knee due to overcompensation. Treatment records reflect numerous diagnoses of a right knee disorder and complaints of left knee pain, and, in a December 2020, the Veteran's VA treatment provider stated that, as the Veteran experienced wear and tear related to his knees during service and sustained a right knee injury therein, which resulted in continuing pain that subsequently affected his left knee, his knee pain should be service-connected. As noted previously, the Veteran's claim for service connection for a bilateral knee disorder was previously denied on the basis that the evidence did not failed to show a current disability of the bilateral knees that occurred in or was caused by service. Consequently, as the newly received evidence includes additional details of the in-service events that the Veteran alleges resulted in his bilateral knee disorder and a medical opinion relating his bilateral knee pain to his military service, the Board finds that the evidence received since the March 2011 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral knee disorder. Accordingly, new and material evidence has been received and such claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disorder. The Veteran asserts he has a current bilateral knee disorder that is related to his military service, to include as a result of his duties as a plane captain and the aforementioned in-service injuries. In this regard, while the Veteran's STRs are negative for any complaints, treatment, or diagnosis of a right or left knee disorder, such document the October 1993 12 foot fall from an aircraft, and he is competent to report his in-service duties and falls. Additionally, his DD Form 214 confirms that his military occupational specialty was electrical/mechanical equipment repairman. Further, the evidence of record reflects variously diagnosed right knee disorders, to include osteoarthritis, internal derangement, and meniscus degeneration, and assessments of left knee pain. Although the Veteran submitted a favorable medical opinion, the Board finds that such is inadequate to establish service connection. Specifically, in December 2020, his treating VA physician reported that he sustained a fall during his military service and, since such time, experienced chronic right knee pain, and because of subsequent weight-bearing and shifting, his left knee had also been affected. She further indicated that the Veteran also had a tremendous amount of wear and tear injury which affected the knees while he was working on/ performing maintenance of aircraft. Thus, the Veteran's VA physician concluded that the Veteran's knee pain should be considered service-connected. However, as she did not identify a specific diagnosis for the Veteran's bilateral knee disorder, did not indicate whether his left or right knee pain presented a functional impairment of earning capacity in light of Saunders v. Wilkie, 886 F3d 1356 (Fed. Cir. 2018), or provide a rationale for the opinion, other than the Veteran's report of an injury and his current symptoms, the Board cannot rely on such to award service connection. Nonetheless, given the above evidence, the Board finds that a remand is warranted for a VA examination and opinion to discern the nature and etiology of any current bilateral knee disorder. 2. Entitlement to a rating in excess of 50 percent prior to June 25, 2019, and in excess of 70 percent thereafter for PTSD. 3. Entitlement to a rating in excess of 10 percent for status post left wrist fracture, healed, with residual mild chronic tendonitis. The Veteran most recently underwent VA examination to evaluate the nature and severity of his PTSD in October 2019 and his left wrist disability in February 2016. At the November 2020 Board hearing, Veteran reported that his PTSD had increased in severity as he and his spouse separated for some time due to his depression, he had been involuntarily committed for psychiatric symptoms within the last 1-2 years, experienced suicidal ideation, went weeks without showring, and had difficulty controlling his anger and impulses, focusing, remembering things, communicating, and sleeping. The Veteran also testified that his left wrist disability had increased in severity over the prior five years. Here, he indicated that he experienced a lot of pain when attempting to bend his wrist into a pushup position, had stiffness where he could hardly move his wrist for a few days, and had difficulty with pulling, repeated motions, and doing a full range of motion with his left thumb. As such suggests that the Veteran's disabilities may have increased in severity since the last VA examinations, a remand is necessary to afford him an appropriate VA examination to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed bilateral knee disorder. Following a review of the record of the record and any necessary testing, the examiner should address the following inquiries: (A) Identify all current right and left knee disorders that have been present at any time proximate to January 2016, even if such is asymptomatic or resolved, to include right knee osteoarthritis, internal derangement, and meniscus degeneration. If the examiner finds that the Veteran does not have a current diagnosis referable to the right and/or left knee disorder, he or she should offer an opinion as to whether his reported symptomatology such results in functional impairment of earning capacity. If so, the examiner is advised that he or she should accept that the Veteran has a disability for the purpose of rendering the requested opinions. (B) For each left and/or right knee disability, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include his reported in-service duties performing maintenance, to include inspections around aircrafts and engine service, and/or injuries to his right knee when he: (1) fell 12 feet from an aircraft to the ground in October 1993, which resulted in his service-connected fracture to the left wrist, and (2) went up a stairwell on the ship, hit his head, fell, and slid down. (C) If arthritis is diagnosed, the examiner should offer an opinion as to whether such manifested within one year of the Veteran's separation from active duty in September 1994 (i.e., by September 1995). If so, he or she should describe the manifestations. (D) If it is found that the Veteran's right knee disorder is related to his military service, but his left knee disorder is not, the examiner should off an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his left knee disorder is caused or aggravated by his right knee disorder, to include as a result of overcompensation. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering any opinion, the examiner should consider the Veteran's statements regarding the onset and continuity of symptomatology, and the December 2020 opinion from his treating VA physician. A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The record to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran's PTSD, and the resulting impact on his occupational and social functioning. A rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left wrist disorder. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's left wrist disability. (B) The examiner should record the range of motion of the left wrist observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the 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. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repeated use over time. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or repeated use over time, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his left wrist, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should indicate whether ankylosis is present and, if so, the nature and severity of such impairment. (F) The examiner should address whether the Veteran's left wrist disability resulted in, caused, or aggravated any impairment in the left thumb in light of his report of reduced range of motion in such finger. (G) The examiner should also comment upon the functional impairment resulting from the Veteran's left wrist disability. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.