Citation Nr: 21028019 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-17 179 DATE: May 10, 2021 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability, the appeal to this extent is allowed. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. In the last final October 2015 rating decision the Regional Office (RO) denied reopening the Veteran's claim of entitlement to service connection for a right knee disability. 2. Evidence received since the October 2015 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability. 3. In the last final October 2015 rating decision the RO denied reopening the Veteran's claim of entitlement to service connection for a low back disability. 4. Evidence received since the October 2015 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for a low back disability. 5. In the last final October 2015 rating decision the RO denied reopening the Veteran's claim of entitlement to service connection for a right ankle disability. 6. Evidence received since the October 2015 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for a right ankle disability. CONCLUSIONS OF LAW 1. The October 2015 rating decision that denied reopening the Veteran's claim of entitlement to service connection for a right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted since the last denial in October 2015 and the claim of service connection for a right knee disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The October 2015 rating decision that denied reopening the Veteran's claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been submitted since the last denial in October 2015 and the claim of service connection for a low back disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The October 2015 rating decision that denied reopening the Veteran's claim of entitlement to service connection for a right ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. New and material evidence has been submitted since the last denial in October 2015 and the claim of service connection for a right ankle disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1981 to September 1986. Issues 1-3: Whether new and material evidence has been received to reopen the claims of entitlement to service connection for a right knee disability, low back disability, and right ankle disability. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a May 2015 rating decision the RO denied service connection for degenerative arthritis of the right knee (also claimed as torn meniscus with soft tissue damage) based on the determination that the disorder preexisted service and there was no evidence that the disorder was permanently worsened as a result of service. The RO based the determination on a VA opinion whereby the examiner opined that degenerative arthritis of the right knee was less likely as not aggravated beyond its natural progression as the Veteran had a preexisting injury that required a surgical intervention at age 13 and it would be mere speculation that the injury to the right knee diagnosed as strain is now causing degenerative arthritis of the right knee. The RO acknowledged that while service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service. The RO denied service connection for a right ankle disability and low back disability including as secondary to the right knee disability as the evidence did not show that the right knee was related to service nor was a right ankle disability or low back disability related to service. The RO noted that the examiner also opined that the right ankle and low back disabilities are less likely as not related to the right knee disability as the Veteran did not seek treatment for over 30 years. The RO also found that the evidence does not show the Veteran had a currently diagnosed right ankle disability. Although the RO concluded that the Veteran did not have a currently diagnosed low back disability, the RO noted that a back x-ray revealed a possible compression fracture that would be caused by a fall or injury and not the right knee disability. In an October 2015 rating decision the RO denied reopening the Veteran's claims of entitlement to service connection for a right knee disability, low back disability, and ankle disability based on the determination that new and material evidence was not received. The Veteran did not perfect an appeal of the above decision and additional new and material evidence was not received within a year following the decision. See 38 C.F.R. § 3.156(b). The decision is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the last final rating decision includes the Veteran's statement in his March 2018 Form 9 Appeal that VA doctors have told him that his current right knee disability is not the result of surgery he had as a child, the damage to the knee is beyond it natural progression for someone his age and that the reported incidents of injuries that occurred while in service were catalysis for the excessive progression and onset of degenerative arthritis in the right knee. Lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). As for the right ankle and low back disorders the Veteran as a lay person is competent to describe pain and discomfort. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In the March 2018 Form 9 Appeal he stated that his knee disability caused him to walk differently, which caused back pain. He also stated that the pain and swelling in his right ankle is a result of him having to walk differently due to his right knee disorder. Thus, the evidence received is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability on a direct basis and the service connection claims for a low back disability and right ankle disability on a secondary basis. The credibility of the evidence is presumed for the purposes of reopening the claims of service connection for a right knee disability, low back disability, and right ankle disability. REASONS FOR REMAND Issues 3-6: Entitlement to service connection for a right knee disability, low back disability, and right ankle disability. As discussed above, the Veteran had a preexisting right knee disability that required a surgical intervention at age 13. On VA knee examination in May 2015, the diagnosis was right knee degenerative arthritis. The examiner opined that degenerative arthritis of the right knee was less likely as not aggravated beyond its natural progression as the Veteran had a preexisting injury that required a surgical intervention at age 13 and it would be mere speculation that the injury to the right knee diagnosed as strain is now causing degenerative arthritis of the right knee. However, service treatment records show that the Veteran injured his right knee twice during service and was in a cast for 4-6 weeks after the first injury. During the September 2020 Board hearing the Veteran stated that he incurred a torn meniscus in service, which medical literature shows also causes osteochondritis. As for the low back disability and right ankle disability, the Veteran testified that due to the way he walks as a result of his right knee disability he has low back and right ankle pain. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of any currently diagnosed low back disability and right ankle disability to include as secondary to the right knee disability. During the September 2020 Board hearing, the Veteran stated that he received treatment at VA medical facilities in Jamaica Plain, MA; Brockton, MA; and Manchester, NH. On remand any outstanding VA treatment records should be associated with the file. By this remand, the Board makes no determination, express or implied, concerning the credibility of any statements or testimony on file. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding VA medical records, including from the VA medical facilities in Jamaica Plain, MA; Brockton, MA; and Manchester, NH. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Afterwards, schedule the Veteran for a VA orthopedic examination by an appropriate clinician to determine the nature and etiology of his right knee disability, low back disability, and right ankle disability. After reviewing the claims file and examining the Veteran the examiner is asked to render the opinions requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. a.) As for the right knee disability the examiner should provide an opinion as to whether it is clear that any currently diagnosed right knee disability to include degenerative arthritis was aggravated (permanently worsened) during, or as a result of, the Veteran's period of active service. If there was an aggravation (permanent worsening) of the Veteran's right knee disability during, or as a result of, his period of active service, is it clear this aggravation (permanent worsening) was due to the natural progress of that disability. In rendering the opinion the examiner is asked to consider the following: On the enlistment examination in December 1980, the examiner noted that the Veteran had a surgical right knee scar, which was a residual of right knee surgery with no functional deficits. On the December 1980 Report of Medical History, the Veteran noted that he had a floating chip removed in his knee when he was thirteen years old. Service treatment records in February 1983 show the provisional diagnosis was possible right medial meniscus tear, patellar tendonitis, plica, old osteochondritis dissecans LFC; an April 1983 orthopedic surgery note shows the Veteran injured his right knee playing basketball, the provisional diagnosis was probable medial meniscus, the impression was "tear S. M.C.L" and the Veteran was placed in a cast for 4-6 weeks; an April 1983 follow-up for right knee trauma shows the examiner noted that x-rays showed no bony abnormalities and the assessment was soft tissue injury to the right knee; an April 1983 right knee x-ray showed no acute fracture but posttraumatic effusion and osteochondritis dissecans involving the lateral condyle; an April 1983 service treatment record shows medial collateral ligament sprain of the right knee; an October 1983 service treatment record shows the Veteran started a running program and noticed pain, stiffness, and swelling, the assessment was possible internal derangement versus report of MCL strain; a November 1983 service treatment record shows an assessment of recurrent MCL strain; a February 1984 service treatment record shows an assessment of old osteochondral fracture right lateral femur, plica, possible medial meniscus tear, patellar tendonitis; and, an April 1985 service treatment records shows osteochondritis. b.) The examiner is asked to provide all current diagnoses associated with the Veteran's claimed low back disability and right ankle disability. The examiner is advised that x-ray evidence associated with a May 2015 back examination shows mild degenerative disease of the lower thoracic and lower lumbar spine and probably remote mild anterior wedge compression fracture deformity of L1. c.) For each diagnosed low back disability and right ankle disability the examiner is asked to opine whether it is at least as likely as not (50 percent or better probability) related to service or (a) caused or (b) aggravated by the right knee disability. In rendering the opinion the examiner is asked to consider the Veteran's contention including in the March 2018 Form 9 Appeal that his right knee disability causes him to walk differently resulting in pain in the low back and right ankle as well as swelling in the right ankle. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.