Citation Nr: 0810367 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-04 841 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for postoperative residuals of meniscectomy, left knee. 2. Entitlement to service connection for postoperative residuals of meniscectomy, left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from November 1968 to May 1969, from July 1980 to July 1983, and from November 17, 1990 to June 12, 1991; he also served in Southwest Asia from February 12, 1992 to April 15, 1992. Army National Guard Retirement Credits Record shows that the veteran had served in the Army National Guard between January 1968 and July 1990. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2005 rating decision, by the Phoenix, Arizona, Regional Office (RO), which confirmed the previous denial of service connection for residuals of postoperative meniscectomy, left knee. The veteran perfected a timely appeal to that decision. On January 10, 2008, the veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing is of record. At that hearing, the veteran submitted additional evidence, and waived his right to initial review by the RO. See 38 C.F.R. § 20.1304 (2007). Although the RO determined that new and material evidence had been received sufficient to warrant reopening the veteran's claim of entitlement to service connection for residuals of postoperative meniscectomy, left knee, the Board as the final fact finder within VA, must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue has been characterized as noted on the title page. FINDINGS OF FACT 1. By a rating action in February 2003, the RO denied the veteran's claim of entitlement to service connection for residuals of postoperative meniscectomy, left knee. The veteran did not appeal that decision and it became final. 2. The evidence associated with the record since the February 2003 rating decision includes evidence which is not cumulative or redundant of the evidence previously of record. Based upon the reason for the prior denial, the evidence is relevant and probative. 3. Residuals of postoperative meniscectomy of the left knee are shown to be the result of incidents in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of postoperative meniscectomy, left knee. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156, (2007). 3. Residuals of postoperative meniscectomy of the left knee were incurred as the result of an injury sustained during a period of active duty for training. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Pertinent Laws, Regulations, and Court Precedents. When the Board or the RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). III. Factual background. The service medical records include a narrative summary, dated in November 1974, indicating that the veteran struck his left knee with a hammer in June 1974 while on active duty with the Army Reserve. He experienced persistent pain following the injury, with swelling and some giving way. The veteran was followed with conservative treatment with no relief. In November 1974, the veteran underwent left knee arthrotomy and excision of the left medial meniscus. On the occasion of a VA examination in August 1983, the veteran indicated that he injured his left knee during annual training in 1974 at Fort Hood, Texas; he stated that his left knee was struck by a sledge hammer. Following a physical examination, the veteran was diagnosed with history of trauma to the left knee, with postoperative meniscectomy, residual. In a Deferred Rating Decision, dated June 5, 1985, the RO denied the veteran's claim for service connection for a left knee disorder for failure to prosecute. Received in December 2002 were additional service dental records. By a rating action in February 2003, the RO denied the veteran's claim for service connection for status postoperative meniscectomy, left knee. The RO indicated that the receipt of additional service medical records required a review of the claims previously denied, since those records were not previously considered. However, the service dental records were not pertinent to the issue, so no change was warranted. In a statement in support of claim (VA Form 21-4138), received in February 2004, the veteran requested service connection for an injury to the left knee that occurred while on active duty in 1974, and which now required total replacement of the knee. Submitted in support of the veteran's claim were service medical records, which show that the veteran was seen at an orthopedic clinic on July 10, 1974, at which time it was noted that he had a history of a hammer blow to the medial aspect of the left knee 13 days ago and he was still having pain, decreased range of motion, and swelling. Of record are VA progress notes, dated from September 2003 through October 2004, which show that the veteran continued to receive clinical evaluation and treatment for a left knee disorder. Also of record is a report of accidental injury in support of claim for compensation or pension (VA Form 21-4176), dated in February 2005, wherein the veteran indicated that he sustained a knee injury on June 28, 1974 while on field duty training. The veteran indicated that he was on annual training. Private treatment reports from El Dorado Hospital and Dr. Jay A. Katz, dated from November 2004 through February 2005, show that the veteran underwent a total knee arthroplasty in November 2004 and was subsequently seen for follow up evaluation. A VA examination report for the spine, dated in February 2005, reflects an impression of status post replacement of the left knee. On the occasion of a VA examination in March 2005, the veteran described an incident in which he was holding a bar on a tank while he was in a 2 week guard training and a colleague was swinging a hammer and missed the bar, and struck him in the knee. The veteran indicated that he was placed in rehab and kept on active duty, and then he had surgery on the left knee. The veteran further noted that he has been having increased pain and symptoms since his original injury. In November 2004, he had a total arthroplasty. Following a physical examination, the veteran was diagnosed with traumatic arthritis of the left knee, status post total knee arthroplasty. The examiner stated that, the description by the veteran was consistent with the progression of the left knee particularly in view of the fact that he required surgery in 1974 and this would be a consistent finding that he had some progression of knee pathology resulting in a total knee arthroplasty. Received in April 2006 was a statement from a Shop Supervisor, dated in October 1974, indicating that the veteran attended ANADUTRA with the 8th Battalion, 40th Armor at Fort Hood, Texas. The Shop Supervisor reported that, while at summer training, the veteran was injured, resulting in damaged knee cartilage; he stated that the veteran was on extended active duty since June 21, 1974 until the date of the letter. The Supervisor stated that on July 8, 1974, the veteran was carried as absent without pay to preserve his sick and annual leave; it was noted that he was going to have surgery on October 28, 1974. The Shop supervisor indicated that the statement was submitted only to be a matter of record in the event that the veteran was declared unable to perform the duties for which he was hired. Also submitted was a copy of a consultation sheet, dated in November 1975, indicating that the veteran injured his knee while on active duty as a member of the Army Reserve. At his personal hearing in January 2008, the veteran indicated that, during the summer of 1974, he was at an annual training as a reservist for Charlie Company 8th Battalion, 40th Armor, at Fort Hood, Texas. The veteran explained that he was holding a tanker bar for taking off the end of connectors of the track, and one of the mechanics missed the bar and hit him with a sledge hammer on his left knee. The veteran indicated that he was taken to the hospital and treated at the Davis-Monthan Air Force Base; he stated that he was then placed on extended active duty following surgery on the left knee in November 1974. The veteran testified that he continued to experience problems with the left knee following service; and, in fact, he recently had to have a total knee replacement. Submitted at the hearing was an Army National Guard Retirement Credits Record which shows that the veteran had served in the Army National Guard between January 1968 and July 1990. Significantly, the report notes that during the period from July 7, 1973 through July 6, 1975 the veteran earned 35 active duty points. Also submitted was a copy of a letter of appreciation from a Commander, dated August 13, 1974, which commended the veteran for the outstanding manner in which he performed his duties as the Unit Motor Sergeant during Annual Training at Fort Hood, Texas, in 1974. A copy of the Certificate of Appreciation was attached to the letter. IV. Legal Analysis-N&M-S/C for residuals of postoperative meniscectomy, left knee. The veteran's claim for service connection for residuals of postoperative meniscectomy, left knee was denied by the RO in February 2003 based on a lack of evidence that he sustained a left knee injury while on active duty or during a period of active duty for training. Since the February 2003 rating decision, the veteran presented credible testimony with respect to incurrence of and treatment for a left knee injury during active duty during annual training in the army reserves. The new evidence includes a report from a commander, an Army National Guard Current annual statement report, and a Certificate of Appreciation. These records also reflect that the veteran was on active duty for training in the summer of 1974. This evidence is clearly new in that it was not previously of record. In addition, it obviously bears directly and substantially on the question before the Board, that is, whether a left knee injury was incurred or aggravated during service. This evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Therefore, this report is new and material and reopening of the claim is in order. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board finds that there is sufficient evidence for the Board to make a determination on the claim for service connection for residuals of postoperative meniscectomy, left knee on the merits (as detailed below). V. Merits Analysis-S/C for residuals of postoperative meniscectomy, left knee. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2007). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2007). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. Presumptive periods, however, do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In determining whether service connection is warranted for a disability alleged, VA is responsible for considering evidence both for and against the claim. If the evidence, as a whole, supports the claim or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is against the claim, then it must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran contends that his left knee disorder began during his reserve service. In particular, he testified at a January 2008 hearing that he sustained an injury to the left knee when he was struck on the left knee during annual training in June 1974 and that he subsequently underwent an operation on that knee in October or November 1974. The record, as stated in the factual statement above, indicates that the veteran was admitted to Davis-Monthan USAF hospital in late June 1974 after he suffered a hammer blow to the left knee requiring a left knee arthrotomy and excision of the left medial meniscus. That hospital report indicated that, at the time, the veteran was on active duty. In addition, in the statement from the Shop Supervisor, dated in October 1974, he specifically noted that the veteran attended ANADUTRA with the 8th Battalion, 40th Armor at Fort Hood, Texas; and, while at summer training, he injured his left knee. He also stated that the veteran was on extended active duty since June 21, 1974 until the date of the letter. Moreover, the veteran received a certificate of achievement for his summer training in August 1974. The preponderance of the evidence supports the veteran's claim for service connection for his left knee disorder. The evidence clearly shows that the veteran has residuals of a left knee injury. The service records clearly reflect that the veteran sustained the injury to his left knee while on active duty for training during an annual training in the summer of 1974, when he was struck on the knee with a sledgehammer. Moreover, a VA examiner clearly attributed the veteran's current left knee disability to the inservice injury. Specifically, in March 2005, the VA examiner noted that the description by the veteran was consistent with the progression of the left knee particularly in view of the fact that he required surgery in 1974, and this would be a consistent finding that he had some progression of knee pathology resulting in a total knee arthroplasty. There are no differing medical opinions of record. The factual circumstances in this case present a situation in which the evidence is at least in equipoise as to whether the veteran's left knee disorder had its origins during a period of active duty service. After resolving all reasonable doubt in favor of the veteran, and for the foregoing reasons, the Board finds that service connection for residuals of postoperative meniscectomy, left knee, is warranted. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER As new and material evidence has been presented, the claim of service connection for residuals of a post-operative meniscectomy, left knee, is reopened. Service connection for residuals of postoperative meniscectomy, left knee is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs