Citation Nr: 22002007 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 17-64 229 DATE: January 13, 2022 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. FINDING OF FACT An unappealed November 2009 rating decision denied entitlement to service connection for a left knee disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The November 2009 rating decision denying the claim for service connection for a left knee disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1964 to April 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that the RO denied the claim of entitlement to service connection for a left knee disability in rating decisions dated in October 2005, April 2009 and November 2009. As discussed further below, the November 2009 rating decision is final. The Veteran requested to reopen the claim in September 2012 and, the RO again denied the claim in a February 2014 rating decision. Within one year of the decision, additional new and material evidence, including an April 2014 private Disability Benefits Questionnaire (DBQ) containing a favorable nexus opinion, was received. Because this evidence is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, the prior February 2014 rating decision did not become final. See 38 C.F.R. § 3.156(b). Nevertheless, the Board must still determine whether new and material evidence has been received given the finality of the November 2009 decision. The Board also notes that following certification of the appeal to the Board in December 2017, the Veteran's representative submitted a claim in January 2019 seeking, in pertinent part, service connection for a left knee disability. See VA 21-526EZ, Fully Developed Claim (Compensation) (January 2019). In a June 2019 rating decision, the previously denied claim for service connection for a left knee condition was continued. In February 2020, VA received a VA Form 10182 Notice of Disagreement (NOD) in which the Veteran's representative appealed, among other things, the issue of entitlement to service connection for a left knee condition and requested a hearing with a Veterans Law Judge (VLJ). In April 2020, the Board sent a notification letter to the Veteran and his representative stating that although the VA Form 10182 had been received, the Board was unable to review the case because the Veteran had already requested a Higher-Level Review or Supplemental Claim for the issue(s) on appeal. The discussion below is thus limited to the instant matter which was certified to the Board in December 2017. It is further noted that on the December 2017 VA Form 9, the Veteran requested a Board hearing. In correspondence received in June 2020 and August 2020, the Veteran, through his representative, withdrew his request for a Board hearing. See Third Party Correspondence (June 2020 & August 2020). Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704(e). Lastly, the record reflects that in June 2020, the Board granted a 90-day extension to allow for the submission of additional evidence and argument. In August 2020, the Veteran's representative submitted additional argument regarding the matter of entitlement to service connection for a left knee disability and waived consideration by the agency of original jurisdiction (AOJ) for any documents submitted after the last adjudication of the matter. On October 7, 2021, the Veteran's representative submitted a written waiver of a Board hearing and a request for a stay on any decision until 90 days after the date of the letter. In December 2021, the Veteran's representative submitted additional argument challenging the adequacy of an unfavorable VA medical opinion. See Third Party Correspondence (December 2021). As the 90-day period has since lapsed, the Board may now proceed with adjudication of the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a left knee disability. The Board concludes that the November 2009 rating decision denying the claim for entitlement to service connection for a left knee disability is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). An October 2005 rating decision denied the Veteran's claim for service connection for a left knee condition, including as secondary to his service-connected right knee disability because the evidence showed no current left knee disability. Additionally, the RO indicated that although service treatment records (STRs) showed the Veteran twisted his left knee, no abnormalities were found on x-ray and no knee condition was listed on his separation examination. An October 2005 letter notified the Veteran of this decision and how to appeal. VA received no appeal or no new and material evidence prior to expiration of the appeal period. Therefore, the October 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. An April 2009 rating decision denied the application to reopen the claim of entitlement to service connection for a left knee condition. The RO determined that while the Veteran submitted VA treatment records that were not previously considered by adjudicators, they were not material insofar as they failed to show the Veteran's left knee disability was secondary to his service-connected right knee disability. Additionally, it was found that VA treatment records did not indicate that a left knee disability was incurred during service. An April 2009 letter notified the Veteran of this decision and how to appeal. As additional evidence was received within the one-year appeal period of the April 2009 rating decision, that decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. In a November 2009 rating decision, the RO continued the prior denial based on consideration of additional VA treatment records, including a July 2009 orthopedic clinic consult wherein the Veteran reported that he believed that his left knee disability was caused by compensating for his service-connected right knee disability. However, the clinician did not provide an opinion linking the Veteran's left knee disability to his right knee disability, and the RO denied the claim. A November 2009 letter notified the Veteran of this decision and how to appeal. VA received no appeal or no new and material evidence prior to expiration of the appeal period. Therefore, the November 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A February 2014 rating decision denied the application to reopen the claim of entitlement to service connection for a left knee condition, to include as secondary to the Veteran's service-connected right knee disability. The RO concluded that evidence submitted to VA was not new and material finding that VA treatment records submitted in connection with the claim did not show that the Veteran's left knee disability was incurred in service nor was it the result of, or aggravated by, the Veteran's service-connected right knee disability. A February 2014 letter notified the Veteran of this decision and how to appeal. As additional evidence was received within the one-year appeal period of the April 2009 rating decision, that decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. In April 2014, the Veteran, through his representative, requested reconsideration of the February 2014 rating decision. Shortly thereafter, in May 2014, VA received a private DBQ for knee and lower leg conditions containing a favorable medical opinion linking the Veteran's left knee condition to service. See DBQ Veteran Provided (May 2014). An October 2014 rating decision granted the application to reopen the claim for service connection for a left knee condition based on new and material evidence. However, service connection was denied primarily based on the Veteran's failure to report for a VA examination scheduled in October 2014. An October 2014 letter notified the Veteran of this decision and how to appeal. However, within the one-year appeal period following the prior denial, in February 2015, the Veteran requested that his claim for his left knee be reopened, indicating he was unable to attend the previously scheduled VA examination. In March 2015, the Veteran presented for a VA knee and lower leg conditions examination. A March 2015 rating decision continued the previous denial for service connection for a left knee disability based on a negative March 2015 VA medical opinion which found no link between the Veteran's left knee condition and his military service nor his service-connected right knee disability. A March 2015 letter notified the Veteran of this decision and how to appeal. The appeal before the Board arises from the Veteran's disagreement with the March 2015 rating decision. See NOD (April 2015). Evidentiary submissions received since the last prior final disallowance in November 2009 includes new and material evidence. Specifically, VA received a private DBQ report, dated in April 2014, in which the examiner linked the Veteran's left knee osteoarthritis to his left knee injury in service. Moreover, a favorable medical opinion dated in January 2019 from the Veteran's private chiropractor, J.S., links the Veteran's left knee condition to service. See Medical Treatment Record Non Government Facility (January 2019). This evidence is new as it was not previously considered by adjudicators and material as it raises a reasonable possibility of substantiating the underlying claim. Therefore, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. See 38 C.F.R. § 3.156(a). Accordingly, the petition to reopen is granted. REASONS FOR REMAND In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his left knee disability is secondary to his service-connected right knee disability. To ensure that VA has met its duty to assist, the claim must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's STRs show he was treated for a left knee injury. In this regard, a September 1965 health record notes the Veteran twisted his left knee while wrestling with a friend the previous night. The examiner noted a history of "many previous sprains of knee". An x-ray was negative. The Veteran was diagnosed with sprain of the left medial collateral ligament. His left leg was placed in a cylinder cast for 2.5 weeks and he was on an L-3 profile for 1 month. In October 1965, the cast was removed. Although it was noted that his left knee was progressively improving, the range of motion of the left knee was "still only to 80 degrees". A July 1967 orthopedic record shows the Veteran also wore a full cast on his right leg for 2 weeks after he injured his right knee in a fall in March 1967. He was diagnosed as having residuals of old injury to the right knee. It is noted that the March 1964 Report of Medical History at enlistment shows the Veteran reported a "trick or locked knee" and "painful or swollen joints." However, there are no additional comments which provide clarification of those responses anywhere in the report. Furthermore, the accompanying Report of Medical Examination at enlistment showed a normal clinical evaluation of the lower extremities. It is noted that the Veteran's February 1967 Report of Medical History at separation shows the Veteran checked off that he had a "trick or locked knee". The accompanying Report of Medical Examination at separation also showed a normal clinical evaluation of the lower extremities and was negative for any notes or comments regarding the Veteran's right and left knee injuries and diagnoses. A July 1967 rating decision granted service connection for residual injury, right knee and a 10 percent rating was assigned effective April 20, 1967, the day after service separation. VA medical opinions were obtained in March 2015 and August 2019 on the matters of direct and secondary service connection. However, as explained below, the Board finds the VA medical opinions are inadequate for adjudicative purposes and remand is required to obtain an addendum medical opinion. A March 2015 medical opinion concluded that the Veteran's left knee osteoarthritis was less likely than not incurred in or caused by the left knee injury in service. The rationale was that the weight of the medical literature does not support that a remote left knee sprain that was casted for 2 weeks and profiled temporarily with return to full unrestricted duty could lead to the development of left knee osteoarthritis many decades later. The examiner determined that the left knee sprain during service was an acute and self-limited knee injury that resolved without residuals. Furthermore, the examiner stated there was no evidence of a chronic left knee condition found at the time of separation or shortly after military discharge. In addition, there was no evidence of chronicity of complaints or care for a left knee condition for many years since military discharge. Finally, the opinion indicated that risk factors for the development of osteoarthritis include age, weight, genetics, occupation, and prior injury. Next, with respect to the theory of secondary service connection, the March 2015 examiner opined that the Veteran's left knee osteoarthritis is less likely than not proximately due to or the result of the Veteran's service-connected residual injury of the right knee as the weight of the medical literature does not support that either a remote sprain in the opposite knee or osteoarthritis in the opposite knee leads to the development of osteoarthritis of the affected knee. The examiner concluded that the Veteran's left knee osteoarthritis is most likely due to normal age-related changes, given that he was 64 years old when he was found to have radiographic evidence of mild bilaterally symmetrical knee osteoarthritis. The opinion indicates that risk factors for osteoarthritis include advanced age, obesity, genetics, occupational activities, and prior knee injury. The Board finds the March 2015 medical opinion inadequate for a number of reasons. First, the opinion is internally contradictory and inconsistent. While the examiner acknowledged that the Veteran suffered a left knee injury during service which required casting for 2 weeks and a temporary physical profile, it stated that medical literature does not support that a remote left knee sprain leads to the later development of left knee osteoarthritis many decades later. However, it then later states that one of the risk factors for the development of osteoarthritis is prior injury. Next, with respect to secondary service connection, the medical opinion is also inadequate. To establish a claim for entitlement to secondary service connection, a veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated beyond its natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The March 2015 medical opinion appears only to address whether the Veteran's left knee disability was caused by his service-connected right knee disability. It does not, however, address whether the Veteran's left knee disability was aggravated beyond its natural progression by his service-connected right knee disability. An adequate medical opinion regarding secondary service connection must address causation and aggravation separately. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to, "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). As such the opinion is inadequate because it does not provide a rationale that deals with causation and aggravation as separate concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). Moreover, the opinion is inadequate insofar as the examiner referred to radiographic evidence of bilateral, symmetrical knee osteoarthritis but failed to reconcile why the right knee condition had been previously medically linked to an in-service injury, while the examiner attributed the left knee osteoarthritis to normal age-related changes. Given the foregoing, the Board finds the March 2015 VA medical opinion is inadequate for adjudicative purposes. Next, an August 2019 VA medical opinion concluded that the Veteran's left knee disability was not related to service nor was it related to the right knee "injury." Rather, the examiner attributed the Veteran's left knee osteoarthritis to his pre-service history, chronic obesity and the normal aging process. The clinician indicated that the Veteran's March 1964 entrance examination report "clearly and unmistakably states c/o painful swollen joints, and trick/locked knee" and "there is no evidence in the active duty STRs of a left knee condition." Thus, the examiner appears to suggest the Veteran's left knee disability preexisted service and was not aggravated during service. The Board finds that the August 2019 VA medical opinion is inadequate because it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on an inaccurate factual premise has no probative value). Furthermore, the opinion is not supported by a rationale that considers whether the Veteran's current left knee osteoarthritis was incurred in or is otherwise related to his in-service left knee complaints, treatment and diagnosis. Rather, the medical opinion essentially finds that the Veteran's left knee disability preexisted service, was not aggravated during service, and is due to obesity and aging. The Board finds the August 2019 VA medical opinion has no probative value as it was based on conclusory statements, lacked a rationale, and was not predicated on an accurate characterization of the evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of his claim, the Veteran submitted two favorable private medical opinions. A private DBQ report from Dr. R.H. dated in April 2014 reflects the Veteran's report that left knee pain gradually began many years ago and progressively worsened. The Veteran recalled injuries to his knees during service wherein he "pulled ligaments" with the left knee initially worse than the right. The Veteran indicated that the left knee "seemed to have healed" prior to discharge from service. The examiner remarked that the Veteran had remote knee injuries during service, initially worse on the left, but because the left knee healed better, only the right side was rated. Dr. R.H. stated that "given the clear association of trauma to later development of osteoarthritis, it makes logical sense that..." The Board notes the last sentence was not finished and the opinion remained incomplete. Nevertheless, at a minimum, the Board can glean that Dr. R.H. found a positive association between a remote trauma and the later development of osteoarthritis. In a January 2019 private medical opinion, chiropractor J.S., D.C., indicated that based on his review of the initial intake information for medical services, along with current examination findings, it is within a reasonable degree of medical probability that the left knee was related to military service. The Board finds the medical opinions above inadequate for adjudicative purposes because the essential rationales for the conclusions are not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Here, the opinions are absent a reasoned rationale or medical explanation supporting the reached conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Also, the opinions appear to be entirely predicated on a history provided by the Veteran and do not reflect consideration of his STRs. A medical provider's recording of medical history does not transform that medical history into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). It is noted that the credibility and weight to be attached medical opinions and evidence are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Further, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Lastly, the Board received in December 2021 new argument from the Veteran's representative, wherein it is argued that obesity was an intermediate cause of his left knee disability ("...right knee condition has made it difficult for him to ambulate and exercise, thereby gaining weight and causing more strain on [redacted -Veteran's name] left knee."). See Third Party Correspondence (December 2021). No medical opinion has been obtained on this question. Given the above, the Board finds remand is required to obtain an addendum medical opinion that adequately addresses service connection on a direct and secondary basis. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms or treatment involving the left knee, including from John Smith, DC of A Better Life Chiropractic. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2019 to the Present. 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any LEFT knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any LEFT knee disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE: If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the clinician, then the clinician must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why). The clinician must opine on: Direct Service Connection (a) Whether any left knee disability, strain, at least as likely as not (1) began during active service, or (2) is related to an in-service injury, event, or disease. Consider and expressly address in-service complaints, treatment and diagnosis related to the September 1965 left knee twisting injury. Explain. (b) Whether any left knee arthritis at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address in-service complaints, treatment and diagnosis related to the September 1965 left knee twisting injury. Explain Secondary Service Connection (a) Whether any left knee disability is at least as likely as not (1) proximately due to the service-connected right knee disability, or (2) aggravated beyond its natural progression by the service-connected right knee disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Indirect Secondary Service Connection Obesity as an "Intermediate Step" (b) Whether it is at least as likely as not that the Veteran's service-connected RIGHT knee disability, (1) caused or (2) aggravated the Veteran's reported obesity? Provide a rationale that deals with causation and aggravation as independent concepts. Explain. (c) If so, was the resulting obesity a substantial factor in causing the Veteran's LEFT knee disability (strain/arthritis)? Explain. (d) If yes, but for the Veteran's reported obesity, would the Veteran have developed LEFT knee disability? Explain. 4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.