Citation Nr: 1301367 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-12 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for mechanical low back pain now diagnosed as low back pain syndrome with spondylitis and old compression fracture of T12 (low back condition). 2. Whether new and material evidence has been received to reopen a service connection claim for anterior cruciate ligament strain, left knee with osteoarthritis (left knee condition). 3. Whether new and material evidence has been received to reopen a service connection claim for anterior cruciate ligament strain, right knee with osteoarthritis (right knee condition). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served active duty from September 1982 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought. The Board notes that the Veteran requested a Travel Board hearing in connection with his current claims. The hearing was held in February 2012; the transcript is of record. FINDINGS OF FACT 1. In a June 2002 rating action, the RO denied the Veteran's claim of service connection for a low back condition, and a bilateral knee condition; the Veteran was notified of the decision and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence received since the June 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a low back condition. 3. The Veteran's degenerative joint disease of the low back had its onset in service. 4. The evidence received since the June 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee condition. 5. The Veteran's left knee arthritis with chondromalacia had its onset in service. 6. The evidence received since the June 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee condition. 7. The Veteran's right knee arthritis with chondromalacia had its onset in service. CONCLUSION OF LAW 1. The RO's June 2002 rating decision that denied service connection for a back condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 2. The evidence received since the June 2002 rating decision is new and material; and the requirements to reopen the Veteran's claim for service connection for a back condition have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Arthritis of the low back was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The RO's June 2002 rating decision that denied service connection for a left knee condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 5. The evidence received since the June 2002 rating decision is new and material; and the requirements to reopen the Veteran's claim for service connection for a left knee condition have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. Left knee arthritis with chondromalacia was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 7. The RO's June 2002 rating decision that denied service connection for a right knee condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 8. The evidence received since the June 2002 rating decision is new and material; and the requirements to reopen the Veteran's claim for service connection for a right knee condition have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 9. Right knee arthritis with chondromalacia was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens claims for service connection for low back, left knee, and right knee conditions, and grants service connection for each, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. New and Material Claims In the May 2009 rating decision on appeal, while noting that service connection had previously been denied for back, left knee, and right knee disorders, the RO considered the merits of the appeal, implicitly reopening the Veteran's claims; the RO also confirmed and continued the denial of service connection for this disease. Thus, the preliminary question of whether the previously denied claims should be reopened is a jurisdictional matter that must be addressed by the Board before considering the underlying claim on its merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As such, the Board must address the threshold question of whether new and material evidence has been received since the last final determination. In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. With respect to each of these claims, to reopen there must be evidence submitted since the June 2002 rating decision, which was not previously submitted (nor is cumulative or redundant of previous evidence); and such evidence by itself or when considered with previous evidence of record, must relate to an unestablished fact as discussed above, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The Board notes that 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). In this case, new and material evidence was not received within a year of the unappealed June 2002 rating decision. The evidence received since the June 2002 rating decision includes a report of VA examination in February 2009, VA and private treatment records including a July 2009 letter from the Veteran's primary care provider, an October 2009 treatment note from his orthopedic doctor, VA treatment notes detailing left knee arthoscopic surgery in June 2011, as well as statements from the Veteran. Additionally, the Veteran testified before the undersigned at a February 2012 video-conference hearing and the transcript of that hearing is on file. The report of the February 2009 VA examination contains findings, diagnoses, and some nexus-related opinions addressing the claimed back, left knee, and right knee disorders. The July 2009 letter, a physician's assistant in the Office of Dr. Villalobos indicated that the Veteran suffers from severe arthritis and chronic joint pain in his back and knees. In addition, a progress note from Dr. Alvaro A. Hernandez from Orthopaedic Surgeons Associates noted that "injuries ... in the military ... are the type of things that can cause ... degenerative changes in [the] knee in the latter decades of life." See Orthopaedic Surgeons Associates Progress Note, dated October 13, 2009. The Veteran testified at the February 2012 video-conference hearing with respect to each of the claimed disabilities to the effect that he had current chronic conditions due to service. With respect to each of the claimed disorders subject to this appeal, at least some of the evidence received since the June 2002 rating decision and pertaining to each of the claimed chronic conditions was not available at the time of that rating decision and is not redundant or cumulative of the evidence available then. In particular, Dr. Hernandez provided competent evidence supportive of the Veteran's bilateral knee claims with respect to the question of whether there was an etiological nexus between the claimed disorders and service. The report VA examination in February 2009 shows material evidence of diagnoses referable to the claimed disorders on appeal, though these reports are generally not altogether supportive of the Veteran's claims with respect to the unestablished facts regarding the question of nexus. The medical records received since June 2002 reflect that the Veteran has consistently reported a continuity of symptomatology since service; the hearing testimony is also consistent with the record. The private progress note from Dr. Hernandez and VA examination report contain evidence that address a link between the Veteran's back, and bilateral knee condition and service. In light of the newly submitted records and contentions when considered with previous evidence of record, the low back, left knee, and right knee service connection claims must be reopened, and therefore are addressed on the merits below. Service Connection Claims The Veteran presently seeks service connection for low back, left knee, and right knee conditions; he maintains that these conditions had their onset in service and/or are related to such service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A. Low Back Condition As an initial matter, the Board notes that the evidence of record sufficiently establishes the Veteran's current diagnosis of low back pain syndrome with spondylitis, old compression fracture of T12, and degenerative arthritis. See "Diagnoses," February 2009 VA Examination Report and Orthopaedic Surgeons Associates Progress Note, dated October 13, 2009. The determinative issue is whether this low back condition is related to military service. The Veteran's DD Form 214 shows his military occupational specialty (MOS) was signal support systems specialist; he testified that his duties, among other things, involved him lifting safes used for storing classified documents. See Hearing Transcript (HT) at 4. The Veteran's entrance examination is not in the claims file; however, a July 1985 report of medical examination shows that no abnormalities affecting the Veteran's back was noted. The Veteran's service treatment records show that March 1987, the Veteran complained of severe back pain after injuring his back lifting a safe in service. He was treated with medication and diagnosed with upper back strain; he was placed on limited duty. Service treatment records also show that the Veteran reported low back pain following lifting weights in December 1988; he was diagnosed with a pulled muscle. In April 1992, the Veteran was treated for back pain following basketball injury. In his April 1997 report of medical history, the Veteran indicated a 10-year history of recurrent back pain; however, on the April 1997 examination report, no back abnormalities were noted. An August 2001 VA general medical examination report reflects that the Veteran stated that he had had problems with his back since 1996. The diagnosis mechanical low back pain. At a February 2009 VA examination, the examiner reviewed the claims file and conducted a clinical evaluation. The examiner diagnosed the Veteran with low back pain syndrome with spondylitis (lumbosacral disease) and an old compression fracture of T12. The examiner opined that although the Veteran did have problems with his back in service, "these events appear to be isolated and not sustaining according to his records." He thus concluded that the Veteran's low back condition is less likely as not the result of his military service. In a July 2009 statement received from the office of Dr. Villalobos, the physician's assistant stated that the Veteran had suffered from chronic back pain for over seven years. Initially, the Veteran has provided a competent and credible account his injuries in service. Jandreau. His account his in-service injuries and associated symptomatology has also remained relatively consistent with his service treatment records, evidencing continuous back problems since service, and tending to at least partially corroborate his report (i.e., continuity of symptomatology). What is more, while the February 2009 VA examiner provided a negative nexus opinion, said opinion did not contradict any of the Veteran's lay statements, testimony, or the record. These factors together make the Veteran's statements, as to these matters, competent, credible and highly probative. See Buchannan v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). In any service connection claim, competent medical evidence and opinions are highly probative in establishing the claim. It is noted that there is a 3-4 year gap between the Veteran's separation from service and his first complaints of back pain; however, he has credibly testified that his symptomatology has continued since service, and he has treated himself with orthotic supports and medication since that time. On the other hand, the February 2009 VA examiner indicated it was less likely as not that the Veteran's current back condition was the result of his military service; at the same time, the examiner acknowledged that the Veteran has experienced low back pain since service, and had been taking NSAIDs to treat his symptoms. Thus, the VA examination report evinces at a minimum, a competent medical suggestion that currently diagnosed back condition could be related to military service. See Washington, supra; see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In sum, the evidence confirms the Veteran's diagnosis of low back pain syndrome with spondylitis, an old compression fracture of T12, and arthritis, and supports a finding that he has provided a competent and credible account of a continuity of symptomatology since service. Thus, resolving all reasonable doubt in the Veteran's favor, service connection for arthritis of the low back is warranted. B. Bilateral Knee Condition The Board notes that the evidence of record sufficiently establishes the Veteran's current diagnosis of degenerative arthritis, and chondromalacia and degenerative meniscus tears of both knees. See "Diagnoses," February 2009 VA Examination Report and Orthopaedic Surgeons Associates Progress Note, dated October 13, 2009. The determinative issue is whether his left and right knee conditions are related to military service. The Veteran's entrance examination is not in the claims file; however, a July 1985 report of medical examination, taken shortly after entrance, shows that no abnormalities affecting the Veteran's knees were noted. The service treatment records complaint and treatment of right and left knee problems and on his April 1997 report of medical history, the Veteran indicated a history of tricked or locked knee that he had for 2 years; however on the April 1997 examination report, no knee abnormalities were noted. An August 2001 VA examination report reflects that the Veteran reported having problems with his knees since 1994. The diagnoses were chondromalacia of both knees with mild chronic anterior cruciate tear of the knees and mild osteoarthritis of both knees. At a February 2009 VA examination, the examiner reviewed the claims file and conducted a clinical evaluation. The examiner diagnosed both knees with degenerative arthritis. He stated that it was not uncommon for an individual of the Veteran's age to have developed degenerative arthritis. The examiner opined that although the Veteran did report troubles with his knees in service, the incidents in service were "isolated and not sustaining." Thus, he concluded that the Veteran's bilateral knee condition is less likely as not the result of military service. A Magnetic Resonance Image (MRI) study of the left knee conducted in December 2008 found degenerative changes with mild chrondromalacia, intact cruciate and collateral ligaments, and a tear of the posterior horn or the medial meniscus. A MRI of the right knee was also conducted; it revealed prepatellar bursitis, and arthritis. In a July 2009 statement, the physician's assistant from the office of Dr. Villalobos reported that the Veteran suffers from bilateral arthritic knees with daily, moderate pain. An October 2009 progress note from Dr. Hernandez shows a diagnosis of osteoarthritis and chrondromalacia of both knees with degenerative meniscus tears. See Orthopaedic Surgeons Associates Progress Note, dated October 13, 2009. Additionally, in response to the Veteran's reporting his injuries in service, Dr. Hernandez noted that "injuries ... in the military ... are the type of things that can cause ... degenerative changes in [the] knee[s] in the latter decades of life." Id. As noted, the Veteran has provided a competent and credible account his injuries in service. Jandreau v. Nicholson, 492 F.3d. His account his in-service injuries and associated symptomatology has also remained relatively consistent with his service treatment records, evidencing continuous knee problems since service, and tending to at least partially corroborate his report (i.e., continuity of symptomatology). Additionally, while the February 2009 VA examiner provided a negative nexus opinion, said opinion did not contradict any of the Veteran's lay statements, testimony, or the record. These factors together make the Veteran's statements, as to these matters, competent, credible and highly probative. See Buchannan v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). In any service connection claim, competent medical evidence and opinions are highly probative in establishing the claim. It is noted that there is a 3-4 year gap between the Veteran's separation from service and his first medically documented complaints of knee pain; however, he has credibly testified that his symptomatology has continued since service, and he has treated himself with orthotic supports and medication since that time. On the other hand, the February 2009 VA examiner indicated it was less likely as not that the Veteran's bilateral knee condition was the result of his military service; however, the examiner acknowledged that the Veteran has experienced knee problems since service, and has been taking NSAIDs to treat his symptoms. Thus, the VA examination report evinces at a minimum, a competent medical suggestion that currently diagnosed bilateral knee condition could be related to military service. See Washington, supra; see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In sum, the evidence confirms the Veteran's diagnosis of a left knee and right knee arthritis and chondromalacia and supports a finding that he has provided a competent and credible account of a continuity of symptomatology since service. Thus, resolving all reasonable doubt in the Veteran's favor, service connection for both a left and right knee disability is granted. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder and, to this extent, the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a left knee condition and, to this extent, the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee condition and, to this extent, the claim is granted. Service connection for arthritis of the low back is granted. Service connection for a left knee arthritis with chondromalacia is granted. Service connection for a right knee arthritis with chondromalacia is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs