Citation Nr: 1109113 Decision Date: 03/08/11 Archive Date: 03/17/11 DOCKET NO. 09-47 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from January 1944 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified in a hearing before the RO's Decision Review Officer (DRO) in September 2009. He also testified before the undersigned Acting Veterans Law Judge in a hearing at Washington, DC, in January 2011. A transcript of each hearing has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO last denied a petition to reopen the claim of service connection for a right knee disorder in a March 2003 rating decision; the Veteran was notified in writing of the March 2003 denial, but he did not file a timely notice of disagreement (NOD). 2. The evidence received since the March 2003 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. A right knee disorder was not noted at the Veteran's entrance into active duty service in January 1944. 4. Clear and unmistakable (obvious or manifest) evidence demonstrates that a right knee condition existed prior to the Veteran's entrance into active duty service in January 1944, but the record does not contain clear and unmistakable evidence that a right knee condition was not aggravated during service. 5. The weight of the evidence is at least in a state of relative equipoise on the question of whether a right knee disorder, currently diagnosed as degenerative joint disease, had its onset during the Veteran's active service. CONCLUSIONS OF LAW 1. The March 2003 RO rating decision denying a petition to reopen a claim of service connection for a right knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). 2. Because evidence received since March 2003 is new and material, the claim of service connection for a right knee disorder is reopened. 38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.156 (2010). 3. The presumption of sound condition at service entrance is not rebutted by clear and unmistakable evidence that a right knee condition was not aggravated during service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.304(b), 3.306(b) (2010). 4. A right knee disability, presently manifested by degenerative joint disease, is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Here, the disposition is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. II. Analysis A. Petition to Reopen Initially, the Veteran contends that his claim of service connection should be reopened and adjudicated on the merits. He filed an original claim of service connection in July 1945. The RO denied the claim in a June 1945 rating decision on the basis that a right knee disorder existed prior to service, and there was no evidence of trauma or incident of service competent to have increased the disability. The matter was subsequently appealed to the Board, which issued a decision in January 1946 denying the claim. The Veteran subsequently filed several petitions to reopen the claim, which were all denied. The matter then returned to the Board in March 1991. At that time, the claim was denied on the basis that the prior Board decision in January 1946 was final, and a new factual basis had not be presented upon which the decision could be revised. In January 2002, the RO received a claim of service connection for aggravation of a right knee disorder. A rating decision was issued in March 2003 denying the claim on the basis that the record did not contain new and material evidence, to particularly include evidence linking a current right knee disability to the Veteran's active service. The Veteran submitted a NOD in June 2002, which was prior to the March 2003 rating decision and thus not a valid NOD. He did not submit a timely NOD after the March 2003 rating decision. Because the Veteran did not timely appeal the March 2003 RO rating decision, it became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed the instant petition to reopen in June 2008. If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the pending claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Furthermore, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. 3.156(c). Otherwise, to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, such as this one, the provisions of 38 C.F.R. § 3.156(a) define "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Furthermore, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the evidence associated with the claims file since the March 2003 rating decision includes his testimony offered at a January 2011 Board hearing. The Board finds that this evidence is "new" because it was not before the adjudicator in March 2003. The Board also finds that this new evidence is "material" because it concerns whether a right knee condition preexisted the Veteran's entrance into active service, and whether his right knee was injured during service, which directly relates to the reason the claim was last denied. Moreover, this evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claim for service connection for a right knee disorder. Hence, the appeal to this extent is allowed, and the claim is now subject to review based on the entire evidentiary record. B. Entitlement to Service Connection With regard to the merits of the reopened claim, the Veteran contends that he injured his right knee during service and that he has experienced continuous symptoms up to the present. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. In Wagner v. Principi, the Federal Circuit Court held that, when no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. 370 F.3d 1089, 1096 (Fed. Cir. 2004). Therefore, according to the Federal Circuit Court in Wagner, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a veteran' s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. See id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In making all determinations, the Board must fully consider the lay assertions of record. Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay evidence may not always serve as the basis for a finding that a condition preexisted service, but contemporaneous clinical evidence and recorded history is highly probative factual evidence on this issue. See 38 C.F.R. § 3.304(b); Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000); Paulson v. Brown, 7 Vet. App. 466 (1995). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran's service treatment records (STRs) show no notation of any right knee disorder at his October 1943 entrance examination. Thus, he is entitled to the presumption of sound condition. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board finds, however, that the record contains clear and unmistakable evidence establishing that the Veteran had a right knee disorder preexisting his January 1944 entrance into active service. In particular, the STRs include numerous treatment records documenting the Veteran's report of having had right knee complaints beginning with a childhood injury. An October 1944 progress note shows that he injured the right knee playing baseball one year prior. Likewise, he was admitted for treatment in December 1944 due to complaints of a locked right knee one and one-half days prior. His history was noted to include a right knee injury at age 12 or 13 years old while playing baseball, with a subsequent injury in 1941. He was discharged from inpatient treatment later in December 1944, and the final diagnosis was dislocation, articular cartilage, right misial, accidentally incurred at about age 12 or 13 years as a result of participating in sports. The Veteran was then readmitted for further treatment from April to May 1945. An admission history and physical examination includes a very detailed account of his childhood injury, which occurred while he was playing baseball at approximately age 12. He had had intermittent locking every since. Finally, he underwent a Medical Board proceeding in June 1945. The Board of Medical Officers found that the Veteran had dislocation, articular cartilage, right knee, medial, manifested by intermittent locking pain, and swelling. They further determined that this condition had existed prior to service. The Board finds that the above evidence shows clearly and unmistakably that the Veteran had a right knee disorder prior to his entrance into active service. In connection with his present appeal, he indicated that he injured his right ankle rather than his right knee during childhood. Here, the Veteran's STRs very clearly and repeatedly document his assertions that he injured his knee playing baseball as a child. The Board finds that the STRs are highly probative on this issue because they are more nearly contemporaneous to the childhood injury. See 38 C.F.R. § 3.304(b); Harris v. West, 203 F.3d 1347, 1351. Moreover, the Veteran's current assertions, in which he denies any such baseball injury, have been inconsistent and are affected by the passage of time more than 70 years (since childhood). See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). This indicates that his current recollection may be an honest, but erroneous, recollection, which limits the probative value of his current statements. Dalton, 21 Vet. App. at 36. To reiterate, the record contains clear and unmistakable evidence establishing that a right knee disorder preexisted the Veteran's active service. The Board finds that the presumption of soundness is not rebutted, however, because the record does not contain clear and unmistakable evidence showing that the preexisting disorder was not aggravated during service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. To the contrary, the Veteran's STRs, as indicated, show that he injured his right knee during service and underwent inpatient treatment on two separate occasions. During the first admission, in December 1944, he complained that he had been walking along a field when his right knee started hurting and locked. He presented to the hospital where the assessment was recurrent locking of the right knee associated with pain. The knee was manipulated and unlocked. During his second admission, from April to May 1945, the assessment was derangement, internal right knee joint, manifested by injury to the internal meniscus; contracture, flexion, right knee joint, moderately severe. X-rays of the right knee were negative. The diagnosis was derangement, internal (recurrent) right knee, manifested in pain and restricted extension. The inpatient treatment records, including a May 1945 consultation, show that the Veteran was exhibiting a "protective mechanism," which was also noted as "[b]elieve there is considerable conversion HYS or supracervical exaggeration" with "voluntary contracture and resistance" and pain at a "most bizarre place" in a "pseudo-locked joint." Surgery was not recommended. The Veteran then underwent a Medical Board proceeding in June 1945. The Board of Medical Officers found that the Veteran's dislocation, articular cartilage, right knee, medial, manifested by intermittent locking pain, and swelling, was not aggravated by active service. He was found unfit for duty in September 1944. Also of record, a private (non-VA) physician submitted a letter in August 1945. The physician wrote that the Veteran had rigidity, stiffness, and limitation of motion in the right knee. The knee had "become worse since [the Veteran] has had to be on [his] feet so much in the [A]rmy." Now, it bothered him to walk. This evidence, in summary, shows that the Veteran had knee complaints during service requiring two periods of hospitalization. A Medical Board in June 1945 concluded that a right knee disorder was not aggravated during service. Furthermore, the hospitalization records indicate a psychiatric component to the right knee complaints. The record, however, does not contain clear and unmistakable evidence that the preexisting right knee disorder was not aggravated by service. Accordingly, the presumption of soundness is not rebutted. If a veteran's condition preexisted service, but the presumption of soundness is not rebutted by clear and unmistakable evidence showing that the preexisting condition was not aggravated during service, the aggravation claim converts into a direct service-connection claim. See Wagner, 370 F.3d at 1096. Therefore, the remaining question in the present appeal is whether the Veteran has a current right knee disorder that had its onset during his active service. See Wagner, 370 F.3d at 1094. In this regard, the evidence is at least in a state of relative equipoise in showing that the Veteran has a current right knee disorder that at least as likely as not is related to his right knee disorder during service. At his January 2011 Board hearing, the Veteran credibly asserted that he has had right knee problems ever since it locked during service in 1944. He further testified that he had had right knee surgery after service. The post-service medical evidence first includes a January 1970 letter from a private physician. He wrote that the Veteran was having trouble with his right knee, for which he was discharged from the Army. Presently, he was unable to straighten the leg at the knee joint in the mornings. The Veteran then sought treatment at VA. An October 1970 VA discharge summary indicates that after service he had done " fairly well until September 1969, when he noted locking and pain." During the present course of treatment, he was injected with medication, put in a cylinder cast, and discharged. He underwent right medial meniscectomy at VA in on October 1970. Finally, the more recent VA treatment records, including in December 1970, show that the Veteran has continued to undergo treatment for a right knee disorder, presently diagnosed as degenerative joint disease (DJD). In conclusion, the Board finds the evidence to be at least in a state of relative equipoise in showing that a right knee disorder, currently manifested by DJD, was as likely as not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted. ORDER As new and material evidence has been received to reopen the claim of service connection for a right knee disorder, the appeal to this extent is allowed. Service connection for a right knee disorder, presently manifested by degenerative joint disease, is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs