Citation Nr: 1802343 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-45 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left knee condition, claimed as secondary to a service-connected right knee condition. 2. Entitlement to service connection for a left knee condition, claimed as secondary to a service-connected right knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1963 to September 1967. This matter comes to the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a left knee condition, claimed as secondary to a service-connected right knee condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2009 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a left knee condition as secondary to a right knee condition; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. The evidence received since April 2009 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee condition as secondary to a right knee condition and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The April 2009 rating decision, which denied service connection for a left knee condition, claimed as secondary to a right knee condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for a left knee condition, claimed as secondary to a right knee condition have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed service connection a left knee condition as secondary to a service-connected right knee condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Prior to the filing of the current claim of entitlement to service connection for a left knee condition, the AOJ denied a claim of service connection for a left knee condition in April 2009. The AOJ notified the Veteran of the denial and of his appellate rights in a letter and enclosure sent to him the following month, with a copy to his representative. No relevant evidence or notice of disagreement initiating an appeal was received within one year of the notification. The April 2009 decision is therefore final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017). Once a claim is disallowed in a final AOJ decision it generally cannot be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim 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. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). Thus, it must first be determined whether the claim may be reopened. The claim was denied in April 2009 because it had not been established that the Veteran's left knee condition is related to his service-connected right knee condition. The Board notes that service treatment records (STRs) existed but were associated with the record after the April 2009 rating decision. When VA receives relevant official service department records that existed and had not been associated with the claims file at the time of a prior final decision, VA will reconsider the prior decision without requiring new and material evidence. 38 C.F.R. § 3.156(c). However, the STRs contain no symptoms, treatment, or diagnosis related to the left knee, and the Veteran has only ever claimed the left knee as a condition secondary to the service-connected right knee condition. Thus, the Board finds that these STRs are not relevant and thus do not form a basis for reconsideration. Evidence received since the April 2009 decision was final includes an April 20, 2015 VA examination of the knee. The examination provides a nexus opinion related to the Veteran's claim. This is sufficient to reopen the claim. ORDER The claim of service connection for a left knee condition, claimed as secondary to a service-connected right knee condition, is reopened. REMAND Although the Board regrets the additional delay with regard to the remaining issue, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition to direct service connection under 38 C.F.R. § 3.303(a), service connection may be granted, on a secondary basis, for a disability, which has been caused by or chronically worsened by a condition for which service connection has already been established. 38 C.F.R. § 3.310. The Veteran has been awarded service connection for a right knee condition. He contends that his left knee condition is secondary to his service-connected right knee condition. VA treatment notes from August 2008 indicate a provisional diagnosis of bilateral knee pain in March 2008. Private treatment records from August 2008 indicate treatment for extreme discomfort and/or paresthesia in the right and left knee. In a September 2008 statement, the Veteran stated that in early 2007 he began to get severe pain in his back and left leg. The Veteran states that he has been told "that all of the years of favoring that knee have caused other parts of my body not to function in the way that they were supposed to which has led me to my current condition." In a September 2008 VA examination, the Veteran received a diagnosis of left knee osteoarthritis, effusion. The examiner opined that the Veteran's left knee condition is less likely than not secondarily connected to right knee service connected condition, or primarily service connected, based on history, chronology, clinical and imaging information. The examiner did not address whether the Veteran's right knee condition aggravated the Veteran's left knee condition. Thus, the opinion is insufficient to decide the claim on appeal. A private medical treatment record, dated December 8, 2008, indicates that the Veteran was being evaluated for arthritis of the right and left knees. The letter indicates that the Veteran reported a right knee injury while in service and increasing arthritic changes in his right knee. The letter indicates that the Veteran has degenerative changes and arthritis in the left knee, confirmed with x-ray. The physician states that there is a causal relationship between the Veteran's injury to the right knee and his advanced arthritis and that "as an indirect result, this increases stress across the back due to altered gait as well as increased use of the left knee and this makes him more prone for arthritis in these areas." The letter indicates that the examiner believes the right knee injury in service resulted in degenerative changes in his right knee and contributed to his left knee arthritis due to altered gait. A private medical record received in December 2014 notes an assessment of osteoarthritis in the left knee. The record indicates that an x-ray study of the left knee was conducted in September 2014 and showed advanced degenerative joint disease primarily affected both the medial joint space and patellofemoral articulation and noted peripheral osteophytes. The Veteran underwent a VA examination in April 2015, indicating a diagnosis of knee joint osteoarthritis in both knees. Private medical records from May 2015 indicate that the physician noted telling the Veteran that there is a causal relationship between the arthritis that developed within his left knee as he favored it for an extended period of time due to the right knee arthritis and subsequent right total knee replacement. A VA medical opinion provided in October 2015 indicates that the Veteran's record was reviewed. The examiner opined that the Veteran's left knee condition is "not due to (zero percent probability) proximately due to or the result of the Veteran's service-connected right knee condition." The examiner explained that the Veteran's left knee replacement was due to the normal expected age-related knee joint changes in a then 69 year old, morbidly obese male. The examiner did not address whether the Veteran's right knee condition aggravated the Veteran's left knee condition, and thus, the opinion is insufficient to decide the claim on appeal. In the December 2015 Form 9, the Veteran indicates that his orthopedic doctor advised him that the "change in gait to compensate for the pain in the right knee more than likely resulted in the severe arthritis and subsequent replacement of the left knee." The Veteran indicates his belief that "if not for the change in gait due to compensating for pain in the right knee the left knee would not have had to be replaced." The Veteran notes that he understands that "at the age of 69 that there is wear and tear on the joints. However, it has been pointed out by different medical experts that the amount of wear and tear on my left knee was excessive, even for my age and body mass." After a thorough review, the Board finds that the medical evidence of record is insufficient to decide the claim and that a remand is necessary to provide an examination and obtain a medical opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure that the Veteran is scheduled for a VA examination with regard to his left knee condition. The examiner must review the claims file in conjunction with the examination. The examiner must provide medical opinions as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee condition was caused by his right knee condition. (b) If the examiner concludes that the service-connected right knee condition did not cause the Veteran's left knee condition, then the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that Veteran's left knee condition has been chronically worsened beyond its natural progression (aggravated) by his service-connected right knee condition. The examiner must provide a rationale to support all conclusions reached. The examiner is directed to review the Veteran's claims file. If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. The examiner must support any opinion rendered with a detailed rationale. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim must be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted in full, the AOJ must issue a supplemental statement of the case, allow an appropriate opportunity to respond, and then return the appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs