Citation Nr: 18160655
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-19 532A
DATE:	December 27, 2018
ORDER
As new and material evidence has been received, the claim for service connection for left knee pain is reopened.  
REMANDED
The issue of entitlement to service connection for a left knee disability is remanded.  
The issue of entitlement to service connection for a right ankle disability is remanded.  
The issue of entitlement to service connection for a left ankle disability is remanded.  
The issue of entitlement to service connection for a right upper extremity neurological disability, to include carpal tunnel syndrome, is remanded.  
The issue of entitlement to service connection for a left upper extremity neurological disability, to include carpal tunnel syndrome, is remanded.  
The issue of entitlement to service connection for a right lower extremity neurological disability, to include radiculopathy and sciatica, is remanded.  
The issue of entitlement to service connection for a left lower extremity neurological disability, to include radiculopathy and sciatica, is remanded.  
The issue of entitlement to a heart disability, to include hypertensive heart disease, is remanded.  
The issue of an initial rating in excess of 10 percent for a right knee disability is remanded.  
FINDINGS OF FACT
1. A May 2009 rating decision denied service connection for left knee pain.  The Veteran did not submit a timely notice of disagreement and the May 2009 rating decision is final.  
2. The additional evidence received since the May 2009 rating decision that denied service connection for left knee pain is new and material.  
CONCLUSIONS OF LAW
1. The May 2009 rating decision that denied service connection for left knee pain is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  
2. New and material evidence to reopen the claim for service connection for left knee pain has been presented.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from March 1997 to December 2005.  The Veteran appeared at an April 2018 hearing before the undersigned Veterans Law Judge at the Manila, the Republic of the Philippines, Regional Office.  A hearing transcript is of record.  
In March 2016, the Agency of Original Jurisdiction granted service connection for tension headaches and assigned a 30 percent rating for that disability, effective March 21, 2014.  Therefore, the issue is not on appeal and will not be addressed below.  
On and after March 24, 2015, claims for Department of Veterans Affairs (VA) benefits are to be submitted on the appropriate claims form.  38 C.F.R. § 3.155.  In an October 2016 Appeal to the Board on VA Form 9, the Veteran made contentions which may be reasonably construed as informal claims for service connection for cervical and lumbar spine disabilities.  The Veteran should be provided with the appropriate claim form in order to submit claims for service connection for cervical and lumbar spine disabilities if he desires.  
Application to Reopen Claim of Service Connection
A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103.  
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.  There is a low threshold to raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  
New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  
The May 2009 rating decision denied service connection for left knee pain “because there was no evidence of any injury or other type of disease during service nor is there any other basis to establish a relationship to your military service.”  The Veteran did not submit a timely notice of disagreement and the May 2009 rating decision is final.  
The evidence considered by VA in reaching the May 2009 rating decision includes service medical records, VA clinical and examination records, and written statements from the Veteran.  The service medical records show that the Veteran was seen for left knee complaints.  The report of the December 1996 physical examination for service entrance notes that the Veteran presented a history of having sprained his left knee three months’ prior to the examination.  On contemporaneous physical evaluation, the Veteran was found to exhibit no left knee abnormalities.  A June 1998 treatment record states that the Veteran complained of left knee pain of a few months’ duration.  An assessment of left knee bursitis was made.  The report of a December 2004 physical examination states that the Veteran reported that his left knee had given out.  The report of the October 2005 physical examination for service separation states that the Veteran complained of intermittent left knee pain.  The report of a February 2009 VA examination report and an April 2009 addendum thereto states that the Veteran complained of left knee pain.  The examiner commented “left knee pain per Veteran’s report” and the left knee was found to be within normal limits on examination.  
New and material evidence pertaining to the issue of entitlement to service connection for left knee pain was not received by VA or constructively in its possession within one year of written notice to the Veteran of the May 2009 rating decision.  Therefore, that decision became final.  38 C.F.R. § 3.156(b).  
The additional evidence received since the May 2009 rating decision includes VA examination and treatment records, private clinical documentation, the transcript of the April 2018 Board of Veterans’ Appeals (Board) hearing, and written statements from the Veteran.  A March 2015 left knee magnetic resonance imaging study shows findings consistent with a medial meniscal tear, early osteoarthropathic changes, and a popliteal cyst.  A January 2016 written statement from F. Alday, III, M.D., states that “it is my professional opinion that his knee and ankle pain and instability are a result of years of excessive loading, impact trauma, and misuse from military duties he performed.”  
The Board finds that the March 2015 left knee magnetic resonance imaging study and Dr. Alday’s January 2016 written statement are of such significance that they raise a reasonable possibility of substantiating the claim for service connection.  The documentation addresses the reason of the previous denial as it shows that the Veteran has been diagnosed with a left knee disability and relates that disability to active service.  As new and material evidence has been received, the claim of entitlement to service connection for left knee pain is reopened and will be addressed in the remand below.  
REMANDED ISSUES
1. The issues of entitlement to service connection for a left knee disability,  right and left ankle disabilities, and an initial rating in excess of 10 percent for a right knee disability are remanded.
The claim for service connection for a left knee disability has been reopened.  However, the Board finds that further development is needed before the claim can be adjudicated.  
The Veteran asserts that service connection for left knee, right ankle, and left ankle disabilities is warranted as the disabilities originated during active service or are secondary to abnormal gait arising from the service connected lumbar spine disability.  He contends further that the service connected right knee disability has increased in severity since the last VA examination and necessitates the ongoing use of a knee brace and pain medication.  
Service connection may be established for a disability which is proximately due to or the result of a service connected disease or injury.  38 C.F.R. § 3.310 (a).  Service connection shall be established on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  Service connection is currently in effect for lumbosacral strain, right knee sprain residuals, major depressive disorder, tension headaches, hypertension, and erectile dysfunction.  
The Board observes that the clinical record is in conflict as to any relationship between the diagnosed left knee, right ankle, and left ankle disabilities and active service and the service connected disabilities.  The report of a July 2014 VA knee examination and the August 2014 addendum state that the Veteran was diagnosed with left knee bursitis and sprain residuals.  The examiner commented that “the pain on the left knee is less likely than not related to the bursitis of the left knee that happened in service” as “there was no sign of bursitis on the current X ray.”  The physician did not provide a rationale for her opinion as the diagnosed left knee bursitis and did not address the relationship, if any, between the diagnosed left knee sprain residuals and the documented in service left knee symptoms.  The report of a March 2016 VA ankle examination states that the Veteran was diagnosed with bilateral tibialis posterior and right digitorum longus tenosynovitis.  The examiner commented that “the Veteran’s currently claimed bilateral ankle condition is less likely than not due to or related to his service connected lumbosacral strain and right knee sprain” as the diagnosed disabilities “are separate and distinct conditions not related to or have any link to his service connected lumbosacral strain and right knee sprain.”  The VA physician did not address whether the diagnosed ankle disabilities had increased in severity beyond their natural progress due to the service connected lumbar spine and right knee disabilities.  Dr. Alday’s January 2016 written statement concludes that “it is my professional opinion that his knee and ankle pain and instability are a result of years of excessive loading, impact trauma, and misuse from military duties he performed.”  
VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  When VA obtains an evaluation, the evaluation must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because of the cited deficiencies in the VA knee and ankle examinations; the apparent conflict in the record as to the relationship between the diagnosed left knee and ankle disabilities and active service and the service connected disabilities; and the Veteran’s contentions as the worsening of the service connected right ankle disability, the Board finds that further VA knee and ankle evaluation is necessary.  
Clinical documentation dated after August 2016 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  
2. The issues of entitlement to service connection for a right and left upper extremity neurological disabilities are remanded.  
The Veteran asserts that service connection for right upper extremity and left upper extremity neurological disabilities is warranted as the claimed disabilities were incurred in the same in service traumas that caused the service connected lumbar spine disability.  
The issues of entitlement to service connection for right and left upper extremity neurological disabilities are inextricably intertwined with the referred claim of service connection for a cervical spine disability.  
The report of an April 2016 VA peripheral nerve examination states that the Veteran was diagnosed with cervical radiculopathy and bilateral carpal tunnel syndrome.  The examiner commented that: “based on the evidence, the Veteran has a history of bilateral thumb injury during service;” “there is not enough evidence stated that there was involvement of both wrists during the accidents mentioned;” and “thus it is less likely than not (less than 50% probability) that the carpal tunnel syndrome was incurred in or caused by the thumb injury in service.”  The examiner did not address any relationship between the in service spine trauma or the service connected disabilities and the diagnosed carpal tunnel syndrome.  
Because of the cited deficiency, the Board finds that further VA neurological evaluation is necessary to properly address the issues raised by this appeal.  
3. The issues of entitlement to service connection for right and left lower extremity neurological disabilities are remanded.  
The issues of entitlement to service connection for left and right lower extremity neurological disabilities are inextricably intertwined with the referred issue of service connection for a lumbar spine disability and must be remanded for adjudication of that issue upon receipt of the appropriate claims form.  
4. The issue of service connection for a heart disability to include hypertensive heart disease is remanded.  
The Veteran asserts that service connection for hypertensive heart disease is warranted as he has manifested the claimed disability secondary to service connected hypertension.  
In his May 2016 Appeal to the Board on VA Form 9, the Veteran reported that his internal medicine physician had given him a referral to a cardiologist to evaluate a cardiovascular disability.  Clinical documentation of the cited private treatment is not of record.  
The Veteran has not been provided a VA heart examination to determine the nature of the claimed heart disability and any relationship to service connected hypertension.  
The matters are REMANDED for the following action:
1. Adjudicate the previously referred issues of entitlement to service connection for a cervical spine disability to include degenerative disc disease and a lumbar spine disability to include degenerative disc disease.  The Veteran should be informed in writing of the resulting decision and associated appellate rights.  The issues are not on appeal unless there is both a notice of disagreement and a substantive appeal as to the issues.  
2. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, who has treated him for any left knee, right ankle, left ankle, neurological, or heart disabilities and a service connected right knee disability.  Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile.  
3. Obtain the Veteran’s VA treatment records dated after August 2016.  
4. Schedule the Veteran for a VA orthopedic examination to assist in determining the current nature of any identified left knee and bilateral ankle disabilities and any relationship to active service and the service connected disabilities and the nature and severity of a service connected right knee disability.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a)  Diagnose all left knee, right ankle, and left ankle disabilities found.  
(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left knee, right ankle, or left ankle disability had its onset during active service or is related to any incident of service, including the documented in service left knee symptoms.  Reconcile the opinion with the other opinions of record, including from Dr. Alday.  
(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left knee, right ankle, or left ankle disability is due to or the result of the service connected disabilities, to include as due to any altered gait due to lumbar spine and right knee disabilities.  Reconcile the opinion with the other opinions of record, including from Dr. Alday.  
(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left knee, right ankle, and left ankle disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service connected disabilities, to include as due to altered gait because of the lumbar spine and right knee disabilities.  Reconcile the opinion with the other opinions of record, including from Dr. Alday.  
(e)  Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the right knee.  
(f)  State whether there is any additional loss of right knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up.  
(g)  State whether there is any recurrent subluxation or lateral instability of the right knee, and if so, opine as to the severity.  
5. Schedule the Veteran for a VA neurology examination to assist in determining the current nature of any identified upper and lower extremity neurological disabilities and any relationship to active service and the service connected disabilities.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a)  Diagnose all upper and lower extremity neurological disabilities found.  
(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified upper or lower extremity neurological disability had its onset during active service or is related to any incident of service.  
(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified upper or lower extremity neurological disability is due to or the result of the service connected disabilities.  
(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified upper or lower extremity neurological disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service connected disabilities.  
6. Schedule the Veteran for a VA heart examination to assist in determining the nature and etiology of any identified heart disability and any relationship to active service.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a) Diagnose all heart disabilities found.  If no heart disability is identified, the examiner should specifically state that fact and should reconcile that findings with the evidence of record.  
(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified heart disability had its onset during active service or is related to any incident of service. 
(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified heart disability is due to or the result of service-connected hypertension and other service connected disabilities.
(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified heart disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected hypertension and other service connected disabilities.  

 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. T. Hutcheson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.