Citation Nr: 0712618 Decision Date: 04/30/07 Archive Date: 05/08/07 DOCKET NO. 05-06 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for left knee arthritis as secondary to a service-connected right knee disability, and if so, whether the claim to reopen should be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from October 1960 through June 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Although the RO determined that new and material evidence had been submitted to reopen the veteran's claim for service connection for arthritis of the left knee as secondary to a service-connected right knee condition, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). FINDINGS OF FACT 1. An unappealed rating decision in April 1999 denied service connection for arthritis of the left knee as secondary to a service-connected right knee disability. 2. Evidence received since the April 1999 rating decision is not cumulative of the evidence previously in the record and is sufficient, when considered with the evidence previously of record, to raise a reasonable possibility of substantiating the claim. 3. The veteran's arthritis of the left knee is related to his service-connected right knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim for service connection for left knee arthritis as secondary to a service-connected right knee disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2006). 2. Left knee arthritis is secondary to the veteran's service-connected right knee disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the veteran's claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable outcome below no conceivable prejudice to the veteran could result from this adjudication. In this regard, the agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7140(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 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 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence which must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. § 3.310 (2005). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to, or the result of, a service-connected disability. See Lantham v. Brown, 7 Vet. App. 359, 365 (1995). Analysis a. Whether new and material evidence was submitted: By a rating decision of April 1999, the RO denied the veteran's claim for entitlement to service connection for a left knee condition as secondary to a service-connected right knee condition. The veteran did not appeal this decision. Therefore, the April 1999 decision is a final decision. 38 U.S.C.A. § 7105. The evidence of record at the time of the April 1999 final decision included the veteran's service medical records, and VA medical records dated October 1993 through January 1999. In September 2003, the veteran submitted a request to reopen his claim for entitlement to service connection for arthritis of the left knee as secondary to a service-connected right knee condition. The evidence submitted since the April 1999 final decision includes a VA examination of the left knee, and a letter from the veteran's treating nurse stating that the veteran's left knee pain was related to his service- connected right knee condition. The evidence of record prior to the April 1999 decision did not include a medical connection between the left knee condition and the service-connected right knee condition. The newly submitted evidence includes the above-noted evidence. These records were not available to the RO prior to their April 1999, decision and bear directly and substantially upon the issue for consideration. Accordingly, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for arthritis of the left knee as secondary to a service-connected right knee condition. See 38 C.F.R. § 3.156. b. De novo review The veteran contends that his left knee arthritis was caused by putting extra strain on it as the result of his service- connected right knee condition. The veteran does not claim, and the evidence does not show, that the veteran developed a left knee disability during service or for many years after discharge from service. The veteran submitted numerous VA outpatient and private medical records to substantiate his claim. These records can be summarized as follows. VA medical records dated 1993 through August 2004 reveal complaints of, and treatment for, bilateral knee pain. An October 1995 VA examination of the knees revealed a diagnosis of osteoarthritis of both knees. The examiner opined that the veteran was effectable to have developed left knee abnormalities as a result of favoring the arthritic right knee on walking. An April 1997 progress report provided a diagnosis of patellofemoral syndrome, probable early patellofemoral arthritis of the left knee. A September 2003 VA progress report revealed that the veteran had an abnormal MRI of the left knee in August 2003. The examining physician opined that the left knee problem started with the right knee injury that occurred in service and that it was obvious since the veteran had a problem with his right knee; he had been favoring the left knee. Finally, the veteran submitted an opinion from his treating nurse- practitioner dated February 2004, which provided a history of the veteran's left knee condition, including x-ray results and diagnoses. Additionally, the nurse practitioner opined that since the veteran had to rely on his left leg to do the work of the right leg, the left leg has gradually become more painful. Furthermore, the veteran was afforded a hearing before the undersigned veterans law judge. During his hearing, the veteran testified that his left knee problems began in the 1980s and that he never sustained any injury caused by falling, twisting or otherwise to his left knee. Finally, December 2003 VA examination of the left knee noted subpatellar crepitus on the left knee with pain, range of motion from 0 to 130 degrees, and increased anterior drawer sign on the left. The examiner provided a diagnosis of degenerative arthritis of the left knee with chondromalacia patella, and anterior cruiate ligament instability. However, in a March 2004 opinion, the same examiner opined that it was less likely than not that the veteran's left knee disability was due to his right knee disability, reasoning that if the right knee caused the left knee disability, it would have occurred sooner. The Board finds that the evidence in the record supports a conclusion that it is at least as likely as not that the veteran's left knee condition is secondary to his service- connected right knee condition. The October 1995 VA examiner expressed the opinion that the veteran's left knee condition was due to favoring the arthritic right knee. The 1997 VA progress report indicated that the left knee condition started as a result of the right knee condition, also due to favoring the right knee. Finally, the veteran's primary treating nurse practitioner opined that the veteran's left knee pain worsened gradually over time due to him favoring the right knee. While the VA examiner in his March 2003 opinion opined that some recent VA outpatient records attribute the veteran's depression to other causes, it is unclear whether the VA examiner reviewed the claims file in conjunction with the examination, and he did not provide his opinion until three months after he examined the veteran. As there is an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service (CONTINUED ON NEXT PAGE) connection for arthritis of the left knee as secondary to a right knee disability is warranted. ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for arthritis of the left knee as secondary to a right knee disability is granted. Entitlement to service connection for arthritis of the left knee as secondary to a right knee disability is granted. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs