Citation Nr: 1127967 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-39 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefit sought on appeal. The Board notes that evidence has been associated with the Veteran's claims folder accompanied by waivers of local consideration. See 38 C.F.R. §§ 19.9, 20.1304(c) (2010). FINDINGS OF FACT 1. An unappealed August 2003 rating decision denied service connection for a right knee disability. 2. The evidence received since the August 2003 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability. 3. The Veteran has been shown to currently have a right knee disability that is related to his military service. CONCLUSIONS OF LAW 1. The August 2003 rating decision denying service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Since the August 2003 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a right knee disability; therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. Resolving the benefit of the doubt in the Veteran's favor, the Veteran's currently diagnosed right knee disability was incurred in military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a right knee disability. Implicit in his claim is the contention that new and material evidence which is sufficient to reopen the previously-denied claim has been received. Although the RO declined to reopen the Veteran's claim in the June 2007 rating decision, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. The Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). A VCAA notice letter was sent to the Veteran regarding his service connection claim in December 2006. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letter in light of the fact that the Board is granting the claim. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board further notes that the Veteran received proper notice as to degree of disability and effective date in the above-referenced December 2006 VCAA letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As discussed below, the Board is reopening the Veteran's claim and granting the service connection claim. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Analysis Pertinent legal criteria Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2010). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2010). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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) (2010). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. Claim to Reopen As discussed above, before the Board can evaluate the merits of a previously denied claim, it must first determine whether the Veteran has submitted new and material evidence with respect to that claim after the last final denial. In this case, the last final denial is the unappealed August 2003 rating decision. At the time of the August 2003 rating decision, the pertinent evidence of record included the Veteran's service treatment records. The Veteran's service entrance examination dated in June 1973 documented complaints of leg cramps and that he was in a car accident prior to enlistment. A March 1976 treatment record also noted the Veteran's car accident and knee trauma as well as complaints of right knee pain. Additionally, a treatment record dated in September 1976 noted the Veteran's complaints of right knee pain, and he was prescribed heat packs and ace wraps. A subsequent record dated in November 1976 indicated that the Veteran twisted his right knee playing football. Upon examination, the examiner reported limited range of motion, no discoloration, and slight swelling. The Veteran was diagnosed with a right knee sprain. He also complained of right knee pain in February 1977, and examination of the right knee at that time showed no pain upon palpation, no tenderness, and some pain on range of motion. The Veteran was assessed as having traumatic effusion, and X-ray findings of the right knee were within normal limits. His May 1977 separation examination was absent any findings of a right knee disability. In August 2003, the RO denied the Veteran service connection for a right knee disability. In rendering its decision, the RO indicated that "[a]lthough there is a record of treatment in service for knee condition, unspecified, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. Therefore, service connection for knee condition, unspecified, is denied." The Board observes that notice of the August 2003 rating decision to the Veteran was returned to VA as undeliverable. The address to which the notice was mailed was the most recent address provided by the Veteran at that time. It is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts. "There is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). In November 2006, the Veteran requested that his claim be reopened. After the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim, this appeal followed. The evidence added to the record since the June 2007 rating decision consists of the Veteran's statements, private treatment records dated from July 1987 to May 1995, and a VA examination dated in January 2007. This evidence will be analyzed below. The RO denied the Veteran's claim in 2003 because the evidence did not indicate a relationship between the Veteran's diagnosed right knee disability and his military service. The unappealed August 2003 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). As explained above, the Veteran's claim for service connection may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted [i.e., after August 2003] evidence bears directly and substantially upon the specific matter under consideration. In reviewing the evidence added to the claims folder since the August 2003 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim, specifically evidence demonstrating a relationship between the Veteran's right knee disability and his military service. In particular, G.P., M.D., noted in a February 1993 treatment record that the Veteran "most likely has a remote ACL tear of the [right] knee with an anterolateral rotatory instability based on his history of giving way and injury in 1977." In short, the additionally submitted evidence showing a relationship of the Veteran's current right knee disability to his in-service right knee injury serves to fulfill the crucial, but heretofore missing, element of medical nexus. As such, this evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board concludes that new and material evidence pertaining to the existence of a relationship of a right knee disability to military service has been submitted. The Veteran's claim for entitlement to service connection for a right knee disability is reopened. The Board has reopened the Veteran's claim and is considering moving forward to discuss the claim on its merits. Before doing so, however, the Board must consider certain procedural concerns. The first concern centers on the case of Bernard v. Brown, 4 Vet. App. 384 (1993). The second concern involves the statutory duty to assist, which comes into play at this juncture. The third concern is the standard of review which the Board must employ in de novo decisions. In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that when the Board addresses a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. Because the Board is granting the Veteran's claim, there is no prejudice to the Veteran in the Board's consideration of his claim on the merits. Claim for Service Connection The Board notes that the Veteran complained of leg cramps on his June 1973 service enlistment examination. He also reported to a service treatment physician in March 1976 that he sustained an injury to his right side prior to military service when he was in an automobile accident. The Veteran's in-service report of this injury was documented by the January 2007 VA examiner. To the extent that there is a question as to whether the Veteran had a preexisting right knee disability that was aggravated by his military service, the Board notes that no right knee disability was diagnosed on the Veteran's June 1973 service enlistment examination and thus the presumption of soundness applies. This presumption cannot be rebutted unless there is clear and unmistakable evidence that the right knee disability pre-existed and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board observes that there is no competent medical evidence of a right knee disability which pre-existed the Veteran's period of active military duty. Although the Veteran's service treatment records document treatment for right knee pain in conjunction with the Veteran's report of a car accident prior to service, there is no indication that the Veteran had a pre-existing right knee disability. Further, as indicated above, the January 2007 VA examiner reviewed the Veteran's report of the car accident prior to military service, and did not report that the Veteran had a pre-existing right knee disability. Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran's right knee disability pre-existed service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The presumption of soundness upon enlistment has therefore not been rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010); see also Bagby v. Derwinski, 1 Vet. App. 225, 227. The Veteran is claiming entitlement to service connection for a right knee disability, which he contends is due to his military service. See, e.g., the Veteran's notice of disagreement dated in June 2007. As to Hickson element (1), the medical evidence of record indicates several diagnoses of a right knee disability. See, e.g., the January 2007 VA examination report. Hickson element (1) is, therefore, satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, a March 1976 service treatment record noted the Veteran's complaints of right knee pain. A treatment record dated in September 1976 also noted the Veteran's complaints of right knee pain, and he was prescribed heat packs and ace wraps. A subsequent record dated in November 1976 indicated that the Veteran twisted his right knee playing football. Upon examination, the examiner reported limited range of motion, no discoloration, and slight swelling. The Veteran was diagnosed with a right knee sprain. He also complained of right knee pain in February 1977, and examination of the right knee at that time showed no pain upon palpation, no tenderness, and some pain on range of motion. The Veteran was assessed as having traumatic effusion, and X-ray findings of the right knee were within normal limits. His May 1977 separation examination was absent any findings of a right knee disability. Therefore, the Veteran's service treatment records indicate evidence of in-service right knee trauma and subsequent diagnosis of a right knee sprain. As such, Hickson element (2) is met. Turning to element (3), medical nexus, the record contains conflicting medical opinions which address the issue of medical nexus. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Dr. G.P. reported in a February 1993 treatment record that "[the Veteran] most likely has a remote ACL tear of the knee with an anterolateral rotator instability based on his history of giving way and an injury in 1977." His rationale was based on a review of the Veteran's medical history, specifically the Veteran's in-service treatment for the right knee, as well as examination of the Veteran. He specifically discussed the postservice symptomatology of the Veteran's knee, to include the Veteran's complaints of instability in the right knee as well as postservice history of injury to his knee. In contrast to the above opinion, the January 2007 VA examiner reported that "it is not as likely as not [that] the [V]eteran's current right knee condition is related to military service. It is more likely related to his Workmen's Comp injury in 1992 which required four surgeries and extensive physical therapy." His rationale was based on a review of the Veteran's claims folder, examination of the Veteran, and consideration of the Veteran's entire medical history. Both the opinion of Dr. G.P. and the opinion of the VA examiner appear to have been based upon a thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history and medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Given both positive and negative nexus opinions of seemingly equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's current right knee disability is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). As such, element (3), and thereby all three elements, has been satisfied. In conclusion, for reasons and bases expressed above, the benefit sought on appeal, entitlement to service connection for a right knee disability, is granted. ORDER The claim for service connection for a right knee disability is reopened. Entitlement to service connection for a right knee disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs