Citation Nr: 21028351 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-18 104 DATE: May 11, 2021 ORDER Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability is granted. Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle disability is granted. Whether new and material evidence has been submitted to reopen a claim for service connection for a left ankle disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for left ankle disability is remanded. FINDINGS OF FACT 1. In a May 2001 rating decision, the regional office denied the Veteran's claim for entitlement to service connection for a right knee disability, left ankle disability, and right ankle disability; the Veteran did not appeal this decision or submit new and material evidence within a year of its issuance. As such, the May 2001 rating decision is final. 2. Subsequent evidence received since the May 2001 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims for a right knee disability, left ankle disability, and right ankle disability. CONCLUSIONS OF LAW 1. The May 2001 rating decision, which denied entitlement to service connection for a right knee disability, right ankle disability, and left ankle disability, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted to reopen the claim of service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been submitted to reopen the claim of service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been submitted to reopen the claim of service connection for a left ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1979 to March 1983. The Veteran testified before the undersigned Veterans Law Judge at a March 2020 Board hearing. A transcript of that hearing has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in an unappealed regional office (RO) decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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 is defined as 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. 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). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability The Veteran's claim for a right knee disability was initially denied in a May 2001 rating decision. At that time, the Regional Office (RO) found that while there was evidence that the Veteran suffered an acute injury to the right knee in service, there was no evidence of any residual disability. The Veteran did not appeal this decision within one year, nor submit new and material evidence within one year, and as such, the decision became final. In September 2013, the Veteran submitted a fully developed claim form requesting consideration of his claim for a right knee disability. In a July 2014 rating decision, the Veteran's claim for a right knee disability was denied once again. The RO determined that while the claim was considered reopened, the evidence continued to show that the condition was not incurred in or aggravated by the Veteran's military service. Following that decision, the Veteran submitted statements and evidence regarding his involvement in competitive sports while on active service. The Board notes that the Veteran's July 2014 rating decision did not become final as the Veteran submitted new and material evidence within the appeal period. See 38 C.F.R. § 3.156 (b). In November 2014, the Veteran's claim for his right knee disability was denied. The RO determined that while the claim was considered reopened, the evidence continued to show that the condition was not incurred in or aggravated by military service. The Veteran submitted a notice of disagreement with this decision in December 2014. The Veteran's claim for his right knee disability was denied in a March 2018 statement of the case (SOC). The Veteran appealed this decision to the Board in a March 2018 Form 9. As the Veteran has timely appealed his claim since his May 2001 rating decision, the most recent prior final denial is the May 2001 rating decision. At the time of the May 2001 denial, the RO was in receipt of evidence including the Veteran's service treatment records. The evidence since the May 2001 denial includes several VA examinations, private medical treatment records, lay evidence, and lay statements from the Veteran, as well as buddy statements. The evidence received since the May 2001 denial confirms that the Veteran has a current right knee condition. Specifically, the Veteran's July 2014 VA examination shows that he has a diagnosis of osteoarthritis of the right knee. The Board finds that the aforementioned evidence was not previously considered by the agency decisionmakers and is not cumulative or redundant, as the content of this evidence is different than the previously submitted evidence on which the May 2001 decision was predicated. Further, the recently submitted evidence relates to an unestablished fact necessary to substantiate the claim; specifically, the evidence relates to the first prong of service connection: whether the Veteran has a current disability. Accordingly, for all of the above reasons, the Veteran's claim is reopened. As such, the new evidence meets the low reopening standard of Shade. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle disability 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a left ankle disability The Veteran's claim for a right and left ankle disabilities were initially denied in a May 2001 rating decision. At that time, the RO determined that there was no evidence of chronic residuals of injuries to the ankles in service. The Veteran did not appeal this decision within one year, nor submit new and material evidence within one year, and as such, the decision became final. In September 2013, the Veteran submitted a fully developed claim form requesting consideration of his claims for right and left ankle disabilities. In a July 2014 rating decision, the Veteran's claims for left and right ankle disabilities were denied once again. As to the Veteran's left ankle, the RO found that while the claim was considered reopened, the evidence continued to show that the condition was not incurred in or aggravated by military service. As to the Veteran's right ankle, the RO found that the claim was not reopened because the evidence failed to show current chronic condition related to the Veteran's service. Following that decision, the Veteran submitted statements and evidence regarding his involvement in competitive sports while on active service. The Board notes that the Veteran's July 2014 rating decision did not become final as the Veteran submitted new and material evidence within the appeal period. See 38 C.F.R. § 3.156 (b). In November 2014, the Veteran's claims for right and left ankle disabilities were denied. As to the Veteran's left ankle, the RO determined that the evidence continued to show that this condition was not incurred in or aggravated by military service. As to the Veteran's right ankle, the RO determined that the evidence continued to show that the condition was not incurred in or aggravated by military service. The Veteran submitted a notice of disagreement with this decision in December 2014. The Veteran's claims for his ankle disabilities were denied in a March 2018 statement of the case (SOC). The Veteran appealed this decision to the Board in a March 2018 Form 9. As the Veteran has timely appealed his claim since his May 2001 rating decision, the most recent prior final denial is the May 2001 rating decision. At the time of the May 2001 denial, the RO was in receipt of evidence including the Veteran's service treatment records. The evidence since the May 2001 denial includes VA examinations, private medical treatment records, lay evidence, and statements from the Veteran, as well as buddy statements. The evidence received since the May 2001 denial confirms that the Veteran has both a left and right ankle disability. Namely, in the Veteran's July 2014 VA examination, he was diagnosed with a left ankle disability. In February 2018, the Veteran underwent a VA ankle examination. The examiner noted that the Veteran had bilateral acute ankle sprain. In addition to these VA examinations, the Veteran has provided numerous lay statements indicating that he has suffered from residuals of his ankle injuries incurred in service. The Board finds that the aforementioned evidence was not previously considered by the agency decisionmakers and is not cumulative or redundant, as the content of this evidence is different than the previously submitted evidence on which the May 2001 decision was predicated. Further, the recently submitted evidence relates to an unestablished fact necessary to substantiate the claims; specifically, the evidence relates to the first prong of service connection: whether the Veteran has a current disability. Accordingly, for all of the above reasons, the Veteran's claims are reopened. As such, the new evidence meets the low reopening standard of Shade. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he has a right knee disability that is related to his active service. The Veteran's service treatment records from May 1979 to March 1983 show that the Veteran suffered from an acute right knee sprain in August 1981. Medical records from October 1993 show that the Veteran presented with complaints of right knee pain. In a subsequent December 1993 examination, two views of the Veteran's right knee showed no soft tissue or skeletal abnormalities, and joint space was well maintained. In a May 2013 medical note, an examiner determined that there was moderately severe narrowing of the medial compartment of the right knee, as well as moderately severe spurring of the patellofemoral compartment. The examiner concluded that the Veteran had moderately severe degenerative joint disease of the medial and patellofemoral compartments of the right knee. The Veteran underwent a VA examination in July 2014. The examiner confirmed that the Veteran had a diagnosis of osteoarthritis of the right knee. The examiner opined that the Veteran's condition was less likely than not incurred in or caused by the Veteran's service. The examiner reasoned that the Veteran was shown to have treatment for a mild right knee sprain and first degree left ankle sprain in service. These injuries would be expected to heal without long term sequelae, and there were no records in the Veteran's service treatment records to indicate otherwise. In August 2014 correspondence from the Veteran, he provided that while on active service, he was running during a competition and fell into a pothole, causing him to twist his knee. Nonetheless, he reported that he continued the activity. He reported that athletic activities were strongly enforced while he was on duty, and he played on the football team and basketball team; he reported that he had pictures and news articles to substantiate participating and how seriously he played for military team sports. He reported that during these sports, he sprained his ankles and knees on numerous occasions. When an injury occurred, team trainers would tend to injuries. He lastly provided that military records reflected that he had received services for his injuries since 1986. The Veteran submitted additional correspondence in March 2017 in order to explain how he received injuries to his knee and ankles while on active service. He reported that while on duty, he played three sports, and playing sports came with injuries: shoulder, ankle, knees, fingers, feet, toes, and head concussion. When playing, the Veteran suffered from up to three concussions, getting hit so hard he had to sit out of the game a few plays. After concussions, the Veteran reported that the coach would tell him to get back in the game, and that he was alright. The Veteran provided specific details of the teams he played on, as well as his positions. He reported that when he hit other men while playing football, his shoulder was separated, and reset by yanking it multiple times. As to his knees and ankles, he reported he had arthritis which hurt all the time because of all the running and cutting iron on the grid he did. For example, the Veteran recounted a time he was running a play and another man came to block him, fell down on his right knee, and hyperextended it. The Veteran noted that this happened multiple times but with different parts of his body. The Veteran noted that three years of semiprofessional football was equivalent to twelve years of hard labor, and he had a three year football career while at Alconbury. He attended up to 450 practices, and played in 36 games on Saturdays, as well as six preseasons games on Saturdays. He reiterated he suffered from three concussions. In 1987, the Veteran reported complaining about knee swelling to his doctor, and in 1990 fluid was pulled from his knee at Dorn Medical. In 1993, he reported he had surgery on his right knee, and still takes medication for swelling and pain. In support of the Veteran's statements, he submitted photographs depicting young men playing football. See Photographs (received March 2017). One of the photographs depicts the Veteran in a football uniform with the number 43 embellished on the jersey. The subsequent photographs of men playing football focus on a man in a jersey with the number 43. In addition to the photographs, the Veteran submitted news articles regaling a recent game of the football team the Veteran played on. The articles mention the Veteran by name. In a report of general information dated August 2017, the Veteran was asked about the approximate dates of his football experiences and subsequent concussions. The Veteran reported that football was normally from August to November, and he was not provided medical treatment for his concussions but was taken out of the games momentarily. In September 2017, the Veteran's wife, who was his girlfriend while in service, submitted a lay statement in support of the Veteran's claims. She reported that while dating while the Veteran was in service, he would often complain about the pain in his ankles, knees, and wrist. She explained that after his complaints, she learned that he played football for three years, and received hard hits and numerous concussions. In February 2019, the Veteran submitted an additional statement regarding his injuries suffered while playing sports during active service. In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. The Veteran testified regarding his in-service involvement with sports, including an occurrence where another player fell and hit his helmet against the Veteran's knee. The Veteran testified that eventually he had to quit the team because he was experiencing too much pain. The Board finds that the available July 2014 VA examination is not sufficient for appellate review. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In the present case, the July 2014 VA examiner did not consider the Veteran's lay statements regarding his numerous in-service injuries incurred while playing multiple sports, including football. As such, a new VA opinion is necessary. 2. Entitlement to service connection for right ankle disability is remanded. 3. Entitlement to service connection for left ankle disability is remanded. The Veteran contends that he has a left and right ankle disability which are related to his active service. The Veteran's service treatment records from May 1979 to March 1983 show that the Veteran suffered a left ankle sprain in January 19880. X-rays of the ankle showed evidence of an old injury, but not of any acute injury. The Veteran suffered a right ankle sprain in January 1981. In medical records dated October 1986, the Veteran presented after falling down his apartment steps with pain and swelling in his left ankle. The Veteran was noted to have a sprained left ankle. The Veteran underwent a VA examination in July 2014. The examiner diagnosed the Veteran with left ankle degenerative joint disease, but did not note that the Veteran had a right ankle disability. The examiner determined that the Veteran's left ankle condition was less likely than not incurred in or caused by his service. The examiner reasoned that the Veteran was shown to have treatment for a mild right knee sprain and first degree left ankle sprain in service. These injuries would be expected to heal without long term sequelae, and there were no records in the Veteran's service treatment records to indicate otherwise. In August 2014 correspondence from the Veteran, he provided that while on active service, he was running during a competition and fell into a pothole, causing him to twist his knee. Nonetheless, he reported that he continued the activity. He reported that athletic activities were strongly enforced while he was on duty, and he played on the football team and basketball team; he reported that he had pictures and news articles to substantiate participating and how seriously he played for military team sports. He reported that during these sports, he sprained his ankles and knees on numerous occasions. When an injury occurred, team trainers would tend to injuries. He lastly provided that military records reflected that he had received services for his injuries since 1986. The RO requested an ankle examination to determine if the Veteran specifically had a right ankle disability, and if so, if that disability was related to his service. The Veteran underwent an ankle VA examination in February 2018. The examiner noted that the Veteran had bilateral acute ankle sprain. The examiner opined that it was less likely than not that the Veteran had a right ankle diagnosis that was related to his right ankle sprain playing basketball on January 5, 1981. The examiner reasoned that the Veteran had a diagnosed right ankle sprain which was treated as an acute sprain, and there was no evidence of a chronic right ankle condition in service. In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. The Veteran reported that he played sports during active service, and had sprained his ankles playing basketball during gym practice. When that happened, he had to go to the dispensary. He testified that he sprained his ankles more playing basketball than he did when playing football, and stated that he had 2-3 ankle sprain injuries in service. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In the present case, the Veteran's VA examinations of record have not considered the Veteran's lay statements regarding his numerous in-service injuries incurred while playing multiple sports, including football. While the February 2018 VA examiner determined that the Veteran's right ankle injury was less likely than not due to his basketball injury, the examiner did not consider the Veteran's numerous reports of football injuries. As such, a new VA opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any right knee, right ankle, or left ankle disabilities he may have. An examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability had onset in, or is otherwise related to, the Veteran's active service? In answering this question, the examiner should discuss the Veteran's numerous reports of injuries incurred while playing sports during active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right ankle disability had onset in, or is otherwise related to, the Veteran's active service? In answering this question, the examiner should discuss the Veteran's numerous reports of injuries incurred while playing sports during active service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left ankle disability had onset in, or is otherwise related to, the Veteran's active service? In answering this question, the examiner should discuss the Veteran's numerous reports of injuries incurred while playing sports during active service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions is requested, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.