Citation Nr: 22018676 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-10 105 DATE: March 30, 2022 ORDER New and material evidence having been submitted, the previously denied claim of entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right foot disability, is reopened, and to this extent only, the appeal is granted. REMANDED Service connection for a left knee disorder, to include as secondary to a service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus, is remanded. FINDINGS OF FACT 1. An earlier April 2014 rating decision denied service connection and secondary service connection for a left knee condition. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Medical opinion evidence associated with the claims file subsequent to the final April 2014 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of secondary service connection for a left knee disorder. CONCLUSION OF LAW New and material evidence sufficient to reopen the claim of service connection for a left knee disorder, to include as secondary to a service-connected right foot disability, has been received after the final April 2014 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1978 to December 1980 in the U.S. Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified at a Board virtual tele-hearing before the undersigned Veterans Law Judge (VLJ). However, a December 2021 letter from the Board to the Veteran advised him that the Board was unable to produce a complete transcript of the September 2021 hearing due to the audio malfunctions heard throughout his testimony in the Digital Audio Recording System (DARS). On this issue, VA regulation states that in the event a Board hearing has not been recorded in whole or in part due to equipment failure or other cause, or the official transcript of the hearing is lost or destroyed and the recording upon which it was based is no longer available, the Board must notify the veteran and his or her representative in writing that the veteran may request another hearing. 38 C.F.R. § 20.715 (2020) (formerly 38 C.F.R. § 20.717 (2018)). Thus, in light of this regulation, in December 2021 correspondence, the Board offered the Veteran the opportunity to testify at another hearing or have the Board proceed to appellate review of the appeal based on the evidence of record. Id. § 20.715(a)(1)(i)-(ii). Moreover, the December 2021 correspondence also advised the Veteran if he did not respond within 30 days of the correspondence, the Board would assume he does not desire another hearing and will thus decide the appeal on the basis of the evidence of record. Id. § 20.715(a)(2). There is no indication in the electronic claims file that the Veteran responded to this letter or requested another hearing. Therefore, the Board will proceed with adjudication of the left knee appeal. New and Material Evidence New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For legacy claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). The Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court has emphasized that the threshold is low for purposes of reopening a claim. That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance. Evans v. Brown, 9 Vet. App. 273, 284 (1996). Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim. Shade, 24 Vet. App. at 12022. In short, there is a low threshold for determining whether evidence is new and material. For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted 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). Mere offering of an alternative theory of entitlement for service connection (such as secondary service connection) does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). However, evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material. Boggs v. Peake, 520 F.3d 1330, 133637 (Fed. Cir 2008). In an earlier April 2014 rating decision, the AOJ denied service connection and secondary service connection for a left knee condition. The Veteran was notified of the April 2014 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this rating decision. Therefore, the April 2014 rating decision became final for the left knee condition issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2014). In the final April 2014 rating decision, the AOJ denied direct service connection for a left knee condition because there was no evidence in his service treatment records (STRs) of in-service incurrence for the left knee, and there was no nexus between his current left knee condition and any incident or event from the Veteran's active service in the Army from 1978 to 1980. See 38 C.F.R. § 3.303. In addition, the AOJ denied secondary service connection for a left knee condition because there was no affirmative evidence of a secondary relationship between his current left knee condition and his service-connected right foot sprain with severe bruising. See 38 C.F.R. § 3.310. In short, the AOJ denied service connection for a left knee condition on both a direct and secondary basis. Here, the Board finds that new and material evidence has been received to reopen the left knee disorder issue, subsequent to the final April 2014 rating decision. See 38 C.F.R. § 3.156(a). Specifically, the record now contains favorable medical opinions demonstrating a possible link between his left knee disorder and his service-connected right foot, based on the Veteran's reported history. The Board points out the Court's holding that an "adequate" medical nexus opinion is not required to warrant reopening based on new and material evidence. Shade, 24 Vet. App. at 118-119. That is, a July 2015 VA psychological examiner, when discussing the Veteran's reported history of his service-connected right foot disability, indicated that the right foot injury was not treated properly in service and, over many years, "it has progressed to his ankle, knee [left], and back." In addition, the Veteran's private primary care physician at Christie Clinic - Dr. Daniel C. Deem, MD., provided a medical opinion on the February 2018 VA Form 9 he submitted on the Veteran's behalf. In this private medical opinion, the Veteran reported to Dr. Deem that his service-connected right foot injury led him to favor his left leg, thus predisposing him to osteoarthritis in his left knee. Dr. Deem surmised that the Veteran's theory of secondary service connection "is definitely medically a possibility and benefits should be considered." And once again, the Federal Circuit has held that evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material. Boggs, 520 F.3d at 133637. Therefore, assuming the credibility of the Veteran's reported history for VA and private medical opinions for his left knee, this medical evidence relates to a previously unestablished fact (the existence of a secondary relationship between his left knee and his service-connected right foot disability) and raises a reasonable possibility of substantiating the left knee disorder claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Therefore, this evidence is new and material evidence. The claim for service connection for a left knee disorder is reopened. REASONS FOR REMAND Service connection for a left knee disorder, to include as secondary to a service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus, is REMANDED. First, for the left knee disorder claim, the Veteran should be scheduled for the appropriate VA examination to determine the etiology of his current left knee disability, on the basis of being secondary to a service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010) (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion). See also 38 U.S.C. § 5103A(d)(1), (2); 38 C.F.R. § 3.159(c)(4)(i)(C) (circumstances when VA should obtain a VA examination on secondary service connection). In particular, the VA examiner should address whether the Veteran's current left knee disability is proximately due to or aggravated beyond its natural progression by his service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus. See 38 C.F.R. § 3.310(a)-(b); Robinson v. Mansfield, 21 Vet. App. 545 (2008). The Board notes that an earlier March 2014 VA knee examination, although addressing the proximate cause aspect of secondary service connection, failed to address whether the Veteran's current left knee disability is aggravated or worsened by his service-connected foot disabilities. See 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that a VA examiner's opinion that the claimed disability was "related to" factors other than a veteran's service-connected disability was insufficient, as it did not clearly encompass a discussion of aggravation). Second, for his left knee disorder, the Veteran has reported undergoing multiple, private left knee surgeries and being treated by various private medical providers for his left knee from 1999 to the present. However, many of these private treatment records and private surgical reports for the left knee are not present in the claims file. In this respect, VA is required to make reasonable efforts to obtain all "relevant" records, including private and non-Federal records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). The Federal Circuit Court has held that the duty to assist for VA to obtain private records applies to relevant or potentially relevant records, such as the private records discussed above. See Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010) (emphasis added). And VA's duty to assist may arise when a claimant simply refers to pertinent private medical examinations or private treatment but has not yet provided the necessary authorization to secure them. Ivey v. Derwinski, 2 Vet. App. 320 (1992). That is, for private treatment records, "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records." 38 C.F.R. § 3.159(e)(2). "Reasonable efforts" to secure private treatment records will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request, unless it is clear after the first request that a second request would be futile. 38 C.F.R. § 3.159(c)(1). Therefore, the AOJ should contact the Veteran and ask him to submit himself the private treatment records and surgical reports for the left knee that have been referenced at various times during the appeal, if he has them in his personal possession, or to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) for VA to obtain them for him. Third, as the appeal is already being remanded for further development (as explained above), the Board sees the Veteran's VA treatment records on file from the VA Medical Center (VAMC) in Danville, Illinois date to February 2021. Any additional VA treatment records are within VA's constructive possession and are considered potentially relevant to the left knee issue on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran's VA treatment records from the VAMC in Danville, Illinois dated from February 2021 to the present. Therefore, this matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the VAMC in Danville, Illinois, dated from February 2021 to the present and associate them with the claims file. 2. Ask the Veteran to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) to secure multiple private treatment records and private surgical reports for the left knee (listed further below). If the Veteran provides the required authorization with sufficient information to identify and locate these private records, the AOJ should make two requests for the authorized records from these private facilities, unless it is clear after the first request that a second request would be futile. Finally, the Veteran is also asked to provide any of the private treatment and private surgical records (listed further below) himself, if he has them in his possession. The missing private records (mentioned in the Veteran's personal statements, in his VA treatment records, and at his VA examinations) consist of the following: A private emergency surgical repair of a torn left knee ligament after a diving accident, dated sometime in 1999, from Pekin Memorial Hospital in Pekin, Illinois. A private surgical reattachment of the left knee patellar ligament performed by Dr. Wilke at Mercy Hospital which is now Provena Covenant Medical Center in Champaign, Illinois, with date uncertain. A private left knee arthroscopic surgery due to internal derangement performed by Dr. Bruce Monaco, MD., of the Christie Clinic, with date uncertain, but noted to be "a couple years" after the 1999 left knee surgery. Private primary care treatment records and left knee surgical reports dated from 2000 to the present from Christie Clinic in Champaign, Illinois with the following private physicians: Dr. Bruce Monaco, MD.; Dr. Denis Williams, MD.; Dr. Stuart King, MD.; Dr. John Timothy Sehy, MD.; and Dr. Daniel C. Deem, MD. Private treatment reports and left knee surgical reports dated from 2010 to the present from Dr. D. Gordan Allan, MD., an orthopedic surgeon located in Champaign, Illinois. A private left knee arthroscopic surgical report dated in October 2016 with Dr. D. Gordan Allan, MD., at HSHS St. John's Hospital in Springfield, Illinois. A possible private left knee surgical report from 2018, described in VA treatment records as "status post total left knee replacement since 2018." See August 2020, December 2020, and February 2021 VA primary care notes. Private physical therapy records for the left knee dated from 2000 to the present from various, yet to be identified private providers. 3. After completion of steps 1 - 2, schedule the Veteran for a VA knee examination by an appropriate clinician to determine the etiology of his current left knee disability. The VA examiner must review the claims file. The Veteran must be interviewed. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed. The VA examiner must address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with his medical history and the clinical data. Finally, the VA examiner must provide a clear rationale for the medical opinions. Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination for the left knee is not feasible for this Veteran. The VA examiner must respond to the following inquiries: (a.) Is it at least as likely as not (i.e., an approximate balance) that the Veteran's current left knee disability is proximately due to his service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus? (b.) Is it at least as likely as not (i.e., an approximate balance) that the Veteran's current left knee disability is aggravated by, i.e., worsened beyond its natural progression by, his service-connected right foot sprain and bruise, right foot plantar fasciitis, right foot hallux valgus, and bilateral foot pes planus? The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate. For example, a disability can theoretically aggravate another disorder, even if it did not cause it. (c.) In rendering the above opinions on secondary service connection, the VA examiner is advised of the following relevant evidence: With regard to evidence against a secondary relationship, an earlier March 2014 VA knee examination assessed that the Veteran's left knee disability was "less likely than not" (less than 50% probability) proximately due to or the result of the Veteran's service-connected right foot sprain and bruise. The rationale for this opinion was his service-connected right foot condition was much less serious to cause the Veteran's "very serious" left knee disability that required left knee replacement surgery. In addition, the VA examiner surmised that the Veteran's current left knee disability was due to a severe post-service injury to his left knee from a diving accident in 1999. With regard to the evidence in support of a secondary relationship, a July 2015 VA psychological examiner, when discussing the Veteran's reported history of his service-connected right foot disability, indicated that the right foot injury was not treated properly in service and, over many years, "it has progressed to his ankle, knee [left], and back." In addition, the Veteran's private primary care physician at Christie Clinic - Dr. Daniel C. Deem, MD., provided a medical opinion on the February 2018 VA Form 9 he submitted on the Veteran's behalf. In this February 2018 private medical opinion, the Veteran reported to Dr. Daniel C. Deem that his service-connected right foot injury led him to favor his left leg, thus predisposing him to osteoarthritis in his left knee. Dr. Daniel C. Deem surmised that the Veteran's theory of secondary service connection "is definitely medically a possibility and benefits should be considered." DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.