Citation Nr: 21041564 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-01 686 DATE: July 9, 2021 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a low back disability, secondary to service-connected total right knee arthroplasty (right knee disability), and the application to reopen is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for left knee status post total arthroplasty (left knee disability), secondary to service-connected right knee disability, and the application to reopen is denied. New and material evidence sufficient to reopen the claim for entitlement to service connection for a bilateral foot disability, secondary to service-connected right knee disability, has been received, and the application to reopen is granted. Service connection for pelvis misalignment is denied. The severance of service connection for left leg discrepancy was proper. REMANDED The reopened claim for entitlement to service connection for a bilateral foot disability, secondary to service-connected right knee disability, is remanded. FINDINGS OF FACT 1. In an unappealed July 2010 rating decision, the RO denied service connection for a low back disability, secondary to service-connected right knee disability. 2. The evidence associated with the claims file subsequent to the July 2010 denial includes evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a low back disability, secondary to service-connected right knee disability. 3. In an unappealed November 2004 rating decision, the RO denied service connection for a left knee disability. 4. The evidence associated with the claims file subsequent to the November 2004 denial includes evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a left knee disability, secondary to service-connected right knee disability. 5. In an unappealed July 2010 rating decision, the RO denied service connection for a bilateral foot disability. 6. The evidence associated with the claims file subsequent to the July 2010 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a bilateral foot disability, secondary to service-connected right knee disability. 7. The Veteran does not have a current diagnosis of pelvis misalignment. 8. Severance of service connection for left leg discrepancy was proper. CONCLUSIONS OF LAW 1. The evidence received since the July 2010 rating decision is not new and material, and the claim for service connection for a low back disability, secondary to service-connected right knee disability, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The evidence received since the November 2004 rating decision is not new and material, and the claim for service connection for a left knee disability, secondary to service-connected right knee disability, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim for service connection for a bilateral foot disability, secondary to service-connected right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for pelvis misalignment have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. § 3.303 (2019). 5. Severance of service connection for left leg discrepancy was proper. 38 U.S.C. §§ 1155, 5109A; 38 C.F.R. § 3.105(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to February 1991. The Veteran testified before the undersigned at a January 2020 Videoconference hearing. The hearing transcript is of record. NEW AND MATERIAL EVIDENCE Generally, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. 1. New and material evidence to reopen a claim for entitlement to service connection for a low back disability, secondary to service-connected right knee disability In an August 1997 rating decision, the RO denied service connection for a low back disability, secondary to service-connected right knee disability because there was no evidence of a relationship between a low back disability and the service-connected right knee disability. The Veteran did not file an appeal and the decision became final. In April 2004, the Veteran filed a petition to reopen his claim for service connection for a low back disability, secondary to service-connected right knee disability. In a November 2004 rating decision, the RO again denied service connection for a low back disorder, based on findings that the evidence did not establish a relationship between the Veteran's military service and any currently diagnosed low back disability, that there was no evidence of a diagnosis of arthritis of the lumbar spine within a year of discharge, and because no additional medical evidence had been submitted showing that the low back disability was related to the service-connected right knee disability. The Veteran did not file an appeal and the decision became final. In February 2010, the Veteran filed a petition to reopen his claim for service connection for a low back disability, secondary to service-connected right knee disability. In a July 2010 rating decision, the RO again denied service connection for a low back disability, secondary to service-connected right knee disability because there was no evidence of a relationship between a currently diagnosed low back disability and the service-connected right knee disability. The Veteran did not file an appeal and the decision became final. In February 2014, the Veteran filed his current petition to reopen his claim for service connection for a low back disability, secondary to service-connected right knee disability. The evidence added to the record since the July 2010 denial includes VA treatment records showing a current diagnosis and treatment for a low back disability, including degenerative arthritis of the lumbar spine, several year after the Veteran's discharge. This evidence does not show that the Veteran was diagnosed with arthritis of the lumbar spine within one year of his separation from military service, or that his currently diagnosed low back disability is otherwise related to his active military service or the service-connected right knee disability. Absent evidence showing that the Veteran has a currently diagnosed low back disability, related to his active military service, or his service-connected right knee disability, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a low back disability is not reopened. 2. New and material evidence to reopen a claim for entitlement to service connection for left knee status post total arthroplasty (left knee disability), secondary to service-connected right knee disability In a November 2004 rating decision, the RO denied service connection for a left knee disability with traumatic arthritis because there was no evidence showing that the left knee disability occurred in or was caused by service. The RO also noted that the evidence did not show that the Veteran was diagnosed with arthritis of the left knee within one year of his discharge. The Veteran did not file an appeal and the decision became final. In February 2014, the Veteran filed a petition to reopen his claim for service connection for a left knee disability, secondary to service-connected right knee disability. The evidence added to the record since the November 2004 denial includes VA treatment records showing treatment for left knee pain and the currently diagnosed left knee arthritis, several years after the Veteran's discharge. VA treatment records also include a notation that the Veteran's left leg discrepancy could be contributing to his left knee pain. However, the Board notes that the Veteran is no longer service-connected for left leg discrepancy, and the Board, in this decision, finds that the severance of service connection for left leg discrepancy was proper. As such, the treatment records noted above, although new, are not material to the Veteran's claim, as they do not raise a reasonable possibility of substantiating his claim for service connection for the currently diagnosed left knee disability. The newly received evidence does not show that the Veteran has a currently diagnosed left knee disability related to his active military service or the service-connected right knee disability. Absent evidence showing that the Veteran has a currently diagnosed left knee disability related to his active military service or his service-connected right knee disability, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a left knee disability is not reopened. 3. New and material evidence to reopen a claim for entitlement to service connection for a bilateral foot disability, secondary to service-connected right knee disability In a July 2010 rating decision, the RO denied service connection for a bilateral foot disability because the evidence did not show a current diagnosis of a bilateral foot disability. Furthermore, there was no evidence showing a bilateral foot disability during military service or that a currently diagnosed bilateral foot disability was related to the service-connected right knee disability. The Veteran did not file an appeal and the decision became final. In February 2014, the Veteran filed a claim for service connection for a right foot disability, secondary to service-connected right knee disability. The pertinent evidence added to the record since the July 2010 denial includes VA treatment records showing reports of a history of a chronically painful and recurrent mass on the bottom of the right foot, as well as complaints of right foot pain with callus formation. The evidence also includes a December 2013 Disability Benefits Questionnaire (DBQ), which includes a diagnosis of metatarsalgia, a chronic recurrent lesion, and a chronic painful mass on the plantar of the right forefoot. See December 2013 DBQ received February 2014. The evidence also includes private medical records showing surgery for a painful mass on the right foot and bone spurs in the right foot in November 2014. The evidence also includes the transcript of a January 2020 Videoconference hearing, where the Veteran reported bilateral foot problems that developed after his service-connected total right knee replacement. The Board finds that this evidence is new, in that it is not cumulative or redundant of evidence already of record. Furthermore, the evidence relates to an unestablished fact necessary to substantiate the claim, i.e. that the Veteran has a current foot disability, including metatarsalgia of the right foot and bone spurs in the right foot, and in conjunction with the evidence currently of record, including the Veteran's reports of bilateral foot problems, secondary to his service-connected right knee disability, raises a reasonable possibility of substantiating the claim. See January 2020 Videoconference hearing transcript. As such, the Board finds that the low threshold requirement for new and material evidence has been satisfied, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The additional evidence demonstrates that further development is required before the claim may be considered on the merits. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for pelvis misalignment The Veteran contends that he has currently diagnosed pelvis misalignment, secondary to his service-connected right knee disability. Service treatment records are negative for any evidence of pelvis misalignment or any other pelvis disorder. VA treatment records show in January 2014, the Veteran reported that he is followed by a chiropractor for pelvis misalignment. However, X-rays of the pelvis taken in April 2014 were normal. Furthermore, during treatment for low back pain in Apri 2018, it was noted that there was straightening of the lumbar spine, with no pelvic tilt noted. The impression was noted as pelvic unleveling, but there are no clinical findings to support this impression. There is no other medical evidence of record showing a diagnosis of pelvis misalignment or any other diagnosed disability of the pelvis. The Board notes that the Veteran is service-connected for bursitis of the right and left hips. As such, the Veteran is already being compensated for pain in the hip and pelvic area, and a separate rating for a pelvic disability would violate the rule against pyramiding under 38 C.F.R. § 4.14. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no confirmation in the evidence of record that the Veteran has, or has ever had pelvis misalignment or any other diagnosed disability of the pelvis during the pendency of the appeal. In the absence of proof of a current disability, there is no valid claim of service-connection. Severance of Service Connection When severance of service connection is warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. A veteran will be notified at their latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.103, 3.105(d). Upon review, with the issuance of the proposed rating decision and notice of severance, it appears that VA has complied with relevant due process considerations with respect to the reduction and the Veteran has not contended otherwise. 38 C.F.R. § 3.105(d). Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (CUE), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). VA is not limited to the law and the record that existed at the time of the original decision, and a change in medical diagnosis can serve as a basis for severance. In essence, a severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous. Stallworth, at 488. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth. 1. Severance of service connection for left leg discrepancy The RO originally granted service connection for left leg discrepancy in a June 2014 rating decision. The RO issued a rating decision in May 2017 proposing to sever service connection. The RO explained that the Veteran had been granted service connection for left leg discrepancy, secondary to his service-connected right knee status post arthroplasty, under Diagnostic Code 5275, which is for shortening of the lower extremity. However, the evidence did not show that he had incurred any reduction or shortening in length of the left lower extremity. Instead, his right lower extremity had been made longer by the right knee arthroplasty, which he was already service-connected for. The RO then issued the November 2017 rating decision severing service connection effective February 1, 2018. Under Diagnostic Code 5275, shortening of the bones of a lower extremity between 1.25 and 2 inches warrants a 10 percent rating. A 20 percent rating is warranted for 2 to 2.5 inches; a 30 percent rating is warranted for 2.5 to 3 inches; a 40 percent rating is warranted for 3 to 3.5 inches; a 50 percent rating is warranted for 3.5 to 4 inches; and a 60 percent rating is warranted for more than four inches. 38 C.F.R. § 4.71a, Diagnostic Code 5275. In September 2010, the Veteran underwent a total right knee arthroplasty. Subsequent medical reports indicate that there was a leg length discrepancy, with the right leg measuring longer than the left leg. However, there is no medical evidence showing any reduction or shortening in length of the left lower extremity. In fact, on VA examination in April 2012, it was noted that there was a slight leg length discrepancy related to the total right knee arthroplasty with placement of the knee replacement, and that with a re-do of the knee replacement, the leg length discrepancy could be totally resolved. The leg length discrepancy was also noted on VA examination in September 2012, with the right leg measuring 41.75 inches and the left leg measuring 41 inches. The right leg measured longer, but there was no indication that the left leg was shortened. Rather, the indication from the examination reports was that the prosthetic knee replacement caused the right leg to be extended. The Veteran himself has reported that since his total right knee replacement surgery in 2010, his right leg is almost an inch longer than his left leg. He has also reported that his left leg did not get shorter following his right knee surgery, but instead, the components they added to his right knee during his total right knee arthroplasty made his right leg longer than the left leg. See June 2012 statement in support of claim and October 2018 VA Form 9. Based on the foregoing, the Board is able to state, based on the current evidence of record, as directed by Stallworth, that a grant of service connection for left leg discrepancy would be clearly and unmistakably erroneous. This is not a case of a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated. This case involved errors of fact, concerning the length of the Veteran's left leg following surgery for his service-connected right knee, that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ. As such, the Board finds that a severance of service connection for left leg discrepancy is warranted. In summary, there is clear and unmistakable evidence that the Veteran's left lower extremity has not been shortened. Accordingly, there is no current disability to be rated under Diagnostic Code 5275, as there is no evidence of shortening of the bones of a lower extremity, and the Veteran is clearly and unmistakably not entitled to service connection for left leg discrepancy. Thus, the grant of service connection for left leg discrepancy was clear and unmistakable error. The severance of service connection was therefore proper, and the appeal is denied. REASONS FOR REMAND 1. The reopened claim for entitlement to service connection for a bilateral foot disability, secondary to service-connected right knee disability, is remanded. The aforementioned December 2013 VA DBQ indicates that the Veteran was diagnosed with metatarsalgia, a chronic recurrent lesion, and a chronic painful mass on the plantar forefront of the right foot. The examiner opined that "it is possible or at least as likely" that the diagnosed right foot disability was caused by the limb length discrepancy. The Board notes however, that the DBQ also indicates that no imaging studies were performed in November 2013. Therefore, there it is possible that the diagnoses made may not be accurate. On remand, the correct diagnosis of any current right or left foot disability should be determined. The Board notes further that the Veteran is no longer service-connected for the claimed left leg discrepancy, so the examiner's opinion that his foot disability may be related to that disorder is not pertinent. However, the Veteran also asserts that his claimed bilateral foot disability is related to his service-connected right knee disability, irregardless of the claimed left leg discrepancy. See January 2020 Videoconference hearing transcript. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). There is no medical opinion of record addressing whether any currently diagnosed right or left foot disability is related to the service-connected right knee disability. Based on the findings noted above, the Board finds that a new VA examination and opinion are warranted to determine whether any currently diagnosed right or left foot disability is related to the service-connected right knee disability. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. Following completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed left or right foot disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. All indicated studies should be performed. A diagnosis of a left or right foot disability should be confirmed or ruled out. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed right or left foot disability was caused or aggravated by the service-connected right knee disability. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the remaining issue on appeal. If the claim remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.