Citation Nr: 22016342 Decision Date: 03/22/22 Archive Date: 03/21/22 DOCKET NO. 17-53 933 DATE: March 22, 2022 ORDER New and material evidence having been received, the request to reopen the claim of service connection for a right knee disability, to include as due to a service-connected left knee disability is granted. New and material evidence having been received, the request to reopen the claim of service connection for a back disability, to include as due to a service-connected left knee disability is granted. REMANDED Entitlement to service connection for a right knee disability, to include as due to a service-connected left knee disability is remanded. Entitlement to service connection for a back disability, to include as due to a service-connected left knee disability is remanded. Entitlement to service connection for a sciatic nerve disability affecting the bilateral lower extremities is remanded. FINDINGS OF FACT 1. A May 2004 rating decision denied the Veteran's service connection claim for a right knee disability. The Veteran did not submit additional evidence or appeal that decision. Thus, the May 2004 rating decision became final. 2. The evidence added to the record since the May 2004 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 3. A May 2004 rating decision denied the Veteran's service connection claim for a back disability. The Veteran did not submit additional evidence or appeal that decision. Thus, the May 2004 rating decision became final. 4. The evidence added to the record since the May 2004 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen a claim for a right knee disability to include as secondary to service-connected disabilities have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for whether new and material evidence has been received to reopen a claim for a back disability to include as secondary to service-connected disabilities have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to June 1969. Service Connection 1. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability, to include as due to a service-connected left knee disability 2. Whether new and material evidence has been received to reopen a claim for service connection for a back disability, to include as due to a service-connected left knee disability Regardless of the determination by the Agency of Original Jurisdiction (AOJ) to reopen the claim, the Board must adjudicate the new and material issue to determine the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's initial claim for service connection for a right knee and back disabilities were denied in a May 2004 rating decision because there was no evidence that the Veteran's right knee and back disabilities were caused or aggravated by the Veteran's service-connected left knee disability. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. Since the May 2004 rating decision, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) in April 2017 stating that the Veteran's right knee and back disabilities were caused by his service-connected left knee disability. The evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claims. The May 2004 denial was based on there being no evidence of his right knee and back disabilities having a nexus to service. The evidence submitted is neither cumulative nor redundant of the evidence of record at the time of the May 2004 rating decision and raises a reasonable possibility of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include as due to a service-connected left knee disability is remanded. 2. Entitlement to service connection for a back disability, to include as due to a service-connected left knee disability is remanded. The Board is unable to make an informed decision on the issues of service connection for the Veteran's right knee and back disabilities because the September 2017 VA medical opinion is inadequate. In making the negative nexus opinion, the September 2017 addendum opinion did not address the April 2017 private DBQ's that provided a positive opinion that biomechanics of compensating for a left knee disability could cause or aggravate the Veteran's right knee and back disabilities. The April 2017 VA examination is also inadequate, because despite providing a positive opinion, the opinions do not adequately address the Veteran's post service injuries to his right knee and back. Since the prior VA examinations are inadequate, a new VA medical opinion is warranted. 3. Entitlement to service connection for a sciatic nerve disability affecting the bilateral lower extremities is remanded. The service connection claim for sciatic nerve disability is inextricably intertwined with the service connection claim for a back disability and adjudication of that issue will be deferred until the issue of service connection for a back disability is decided. The matters are REMANDED for the following action: 1. Forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's service connection claims for his right knee and back. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right knee and back disability was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee and back disability is proximately due to (caused by) the Veteran's service-connected left knee disability? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee and back disability has been aggravated by the Veteran's service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner is asked to review and discuss the April 2017 DBQ's and opinions for the Veteran's right knee and back disabilities. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for a sciatic nerve disability. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.