Citation Nr: 21028187 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-29 876 DATE: May 10, 2021 ORDER New and material evidence having been received the claim for service connection for right knee postoperative torn meniscus with osteoarthritis (hereinafter right knee disability) is reopened. REMANDED Service connection for right knee postoperative torn meniscus with osteoarthritis is remanded. A rating higher than 10 percent for lumbar strain status post discectomy (hereinafter back disability) is remanded. A compensable rating for left ear hearing loss is remanded. A compensable rating for hypertension is remanded. FINDING OF FACT By a final July 2010 rating decision, the Veteran's claim for service connection for right knee disability was denied. Evidence received since then raises a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a previously denied claim of service connection for right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from February 1987 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in April 2021. Service connection for right knee disability was denied in a July 2010 rating decision. The Veteran did not appeal the issue of right knee disability, and new and material evidence was not submitted within the appeal period. Accordingly, the July 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by the VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA 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). To warrant reopening, 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). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO previously denied the Veteran's claim for service-connection for right knee disability due to the disability pre-existing service and the Veteran not having a current disability. The Veteran's claims file now includes a February 2019 orthopedic surgery outpatient note that includes an assessment of osteoarthritis. The Board finds that this new evidence is not cumulative or redundant of the evidence previously of records, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Right Knee As a preliminary matter, the Board notes that the Veteran had a pre-existing knee disability prior to active service. This disability was not marked on his entrance examination, but there is clear and unmistakable evidence that it pre-existed service as the Veteran testified that he injured his knee playing football in college and an enlistment examination for the reserves notes that the Veteran injured his right knee. However, there is not clear and unmistakable evidence that the Veteran's right knee disability was not aggravated by service. Though the Veteran underwent surgery for meniscal tear, there are post-surgery notes where the Veteran reports pain on the anterior knee. As such, the presumption of soundness has not been rebutted and the Veteran meets the first two elements for service connection. The Board cannot make a fully-informed decision on the issue of service connection for right knee disability because no VA examiner has opined whether the Veteran's osteoarthritis is related to an in-service meniscal tear. In March 2020, the Veteran underwent a VA examination and the examiner found the Veteran to not have a diagnosis of arthritis. The examiner mentioned in their rationale that their opinion was based on 2015 medical records. However, February 2019 VA medical records show that the Veteran was assessed with osteoarthritis. Furtheremore, the examiner noted that the Veteran's right knee disability impacted his ability to perform occupational tasks due to pain walking and standing. Pain alone can qualify as a disability when it serves as a functional impairment. July 2015 treatment records note that the Veteran walks a lot with his job. The Board finds that the Veteran's right knee pain is a functional impairment as it interferes with his ability to perform his occupational tasks. A remand is necessary to obtain an adendum opinion as to whether the Veteran's osteoarthritis and right knee pain is due to his in-service meniscal tear. Back Disability Left Ear Hearing Loss Hypertension In a January 2017 statement, the Veteran identified relevant outstanding private treatment records. He stated that he was receiving treatment from a chiropractor for his back disability. A remand is required to allow VA to obtain authorization and request these records. At his April 2021 hearing, the Veteran asserted that his back disability, left ear hearing loss, and hypertension have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back disability, left ear hearing loss, and hypertension. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the chiropractor that treats or has treated his back disability. Make two requests for the authorized records from the chiropractor unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion regarding whether the Veteran's right knee osteoarthritis and right knee pain is at least as likely as not (50 percent or greater) related to an in-service meniscal tear. The rational for the opinion must be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.