Citation Nr: 21042131 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-31 652 DATE: July 12, 2021 ORDER 1. The appeal seeking to reopen a claim of service connection for residuals of a right knee injury is granted. REMANDED 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. 3. Entitlement to service connection for a right knee disability, to include residuals of a right knee injury and arthritis, (on de novo review) is remanded. 4. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. An unappealed September 2015 rating decision denied the Veteran service connection for right knee injury, finding, in essence, that such disability pre-existed, and did not increase in severity beyond natural progression during, his active military service. 2. Evidence received since the September 2015 rating decision includes buddy statements and deemed-credible testimony that the current right knee disability began in service; relates to unestablished facts necessary to substantiate the claim of service connection for a right knee injury; and raises a reasonable possibility of substantiating such a claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for right knee injury may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty for training (ACDUTRA) from July 1960 to January 1961, and on active duty from October 1961 to August 1962. These matters are before the Board on appeal from a March 2017 Department of Veterans Affairs (VA) rating decision. In April 2021, a hearing was held before the undersigned; a transcript is in the record. At the hearing the Veteran requested, and was granted, a 60-day abeyance period for the submission of additional evidence; such evidence was received. 1. The appeal seeking to reopen a claim for service connection for right knee injury is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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). When determining whether the claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold one. The U. S. Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening". See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A September 2015 rating decision denied the Veteran service connection for right knee injury, finding essentially that a right knee disability was noted when the Veteran entered (his second period of) active service and it did not increase in severity beyond natural progression during service. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and that decision is final. 38 U.S.C. § 7105. The evidence of record at the time of the September 2015 rating decision included the Veteran's STRs, his lay statements, a VA record review and advisory medical opinion, and VA treatment records. Evidence received since the September 2015 rating decision includes lay statements from fellow servicemembers and the Veteran's brothers, and lay statements and hearing testimony from the Veteran. The Veteran submitted a June 2020 buddy statement from an individual who stated that he and the Veteran were both stationed at Fort Leonard Wood for basic training from July 30, 1960 to January 29, 1961, and that on the day they were discharged at the end of January 1961, the Veteran told him of a really bad fall he experienced the previous day and that his knee was hurting badly. He stated that they hitchhiked together all the way home to south Texas, and he remembered the Veteran being in pain and walking with a stiff leg during their travel. The Veteran also submitted two June 2020 buddy statements from individuals who served with him from October 1961 to August 1962 indicating that he was on crutches and in pain recovering from recent (just prior to that period of service) knee surgery. At the Board hearing, the Veteran testified that he injured his right knee while assigned to a basic training unit at Fort Leonard Wood in January 1961, two days before the end of his ACDUTRA service from July 1960 to January 1961. He testified that, on January 29, 1961, he slipped on icy/snowy steps while exiting the mess hall and his knee dislocated; he did not seek infirmary treatment because he was due to depart from the base, but reported the injury to his commanding officer. He testified that he then hitchhiked home to south Texas with the friend who wrote the June 2020 supporting statement. He testified that from then until August 1961 he had problems with the knee dislocating, to the point that it dislocated several times daily. He testified that he wore a band to support the knee, but it worsened nonetheless; his father took him to an orthopedist who found he had torn ligaments, and that he underwent reparative surgery in September 1961. He testified that he underwent a second surgery, for right knee arthritis, in 2007. In June 2021, the Veteran submitted a statement from his three brothers attesting that he underwent right knee surgery in September 1961 to repair torn ligaments sustained in a bad injury while he was stationed at Fort Leonard Wood. The siblings stated that after coping for years with the effects of the original injury and the first surgery, he needed a second surgery (which was done in 2007). The evidence received since the September 2015 rating decision was not before agency decision-makers then, is new, and directly addresses an unestablished fact necessary to substantiate the claim of service connection for right knee injury (nexus to service). Considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, the evidence is both new and material, and the claim of service connection for right knee injury may be reopened. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. At the Board hearing, the Veteran testified that in April 2021 he underwent audiometric testing at Costco which showed that his hearing loss had worsened since his last VA examination in February 2017. Given the duration of the interval since he was last examined and the allegation of worsening, a contemporaneous examination to assess the disability is necessary. 3. Entitlement to service connection for a right knee disability on de novo review. The Veteran contends that he injured his right knee during the last days of his ACDUTRA service in January 1961 when he slipped and fell on icy steps on one of the last days of such service. He states that he did not seek medical care at the time because he was about to leave due to his tour of duty ending. Whether a current right knee disability may be related to an event in service such as the Veteran describes is a medical question. There is no VA medical opinion that adequately addresses that question. The low threshold standard for when an examination to obtain a medical opinion is necessary is met. The medical evidence shows that in February 2007 the Veteran underwent right partial knee replacement by a private (non-VA) orthopedic surgeon. A review of the record found that the AOJ has not attempted to secure the potentially relevant records of that knee surgery. Such records are pertinent evidence in this matter that is outstanding, and VA's duty to assist requires that they be sought. The record does not show an attempt to obtain them. Authorization from the Veteran is needed for such development. 4. Entitlement to service connection for a heart disability. Numerous VA treatment records between 2004 and 2015 show that the Veteran was receiving treatment from a non-VA cardiologist. A review of the record found that the AOJ has not attempted to secure potentially relevant records of the Veteran's cardiovascular treatment, specifically including the earliest available treatment records (which may have bearing on the onset and etiology of such disability. As such records are likely to contain information pertinent in this matter, VA's duty to assist requires that they be sought. The record does not reflect an attempt to obtain them. Authorization from the Veteran is needed for such development. At the Board hearing, the Veteran testified that on examination for separation from his second period of service, the examiner suspected a heart murmur and called for an EKG. He testified that he first received a diagnosis of cardiac arrhythmia about 15 years ago, when he sought treatment for episodes of rapid heartbeats. He testified that at times during service he had episodes of heart palpitations, which he then attributed to intense physical training. Whether a current heart disability may be related to an event in service such as the Veteran describes is a medical question. There is no VA medical opinion that adequately addresses that question. The low threshold standard for when an examination to obtain a medical opinion is necessary is met. The matters are REMANDED for the following action: 1. Obtain for the record the Veteran's complete updated records of VA treatment (from May 2018 to the present) for right knee and heart disabilities. Also, ask the Veteran to complete current VA Forms 21-4142 for each private provider who has evaluated or treated him for cardiovascular disability and right knee disability, to include records pertaining to a 2007 right partial knee replacement and subsequent recovery, authorizing VA to obtain complete clinical records of the evaluations and treatment from each provider. Secure complete clinical records of the evaluations and treatment from each provider. If there is no response to an initial request for records, make a second request (unless it is clear after the first request that a second request would be futile). 2. Then, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his claimed right knee disability. The Veteran's record must be reviewed by the examiner. On examination/interview of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a.) Identify (by diagnosis) each right knee disability found (or shown by the record during the pendency of these claims). (b.) Elicit from the Veteran all allegations regarding the relationship between any right knee disability and his service. (c.) Identify the likely etiology for each right knee disability entity diagnosed, (specifically addressing the Veteran's stated theory regarding nexus to service). Opine whether it is at least as likely as not (a 50% or greater probability) that the disability was (a) incurred in service, (b) manifested as arthritis within a year after discharge from service, (c) noted during service with continuity of symptoms since service, and (d) whether it is related to the incident (slipping and falling on icy steps) the Veteran describes. Include rationale with all opinions, with citation to supporting factual data, as deemed appropriate. 3. Also arrange for a heart diseases examination of the Veteran to determine the nature and likely etiology of his claimed heart disability. His claims file must be reviewed by the examiner. On examination/interview of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a.) Identify (by diagnosis) each heart disability entity found (or shown by the record during the pendency of this claim). (b.) Elicit from the Veteran his allegation regarding a nexus between the heart disability diagnosed and his service. (c.) Regarding each disability entity diagnosed, identify the likely etiology (addressing the Veteran's stated theory regarding nexus to service). Specifically, is it at least as likely as not (a 50% or greater probability) that it was a) incurred in service, b) manifested within one year after discharge from service, c) noted during service with continuity of symptoms since service, and d) whether it is related to the incident (heart palpitations during service, and heart murmur noted on service separation examination) he describes. Include rationale with all opinions, with citation to supporting factual data and medical principles, as deemed appropriate. 4. Also arrange for an audiological evaluation of the Veteran (with audiometric studies) to assess the current severity of his bilateral hearing loss. In addition to reporting audiometric findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on his functioning (and opine whether his account is consistent with the level of hearing acuity shown by audiometry). All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.