Citation Nr: 1301749 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-22 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and M.O. ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 15, 1977 to November 3, 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied reopening the Veteran's service connection claim for a right knee disability. The Veteran testified at an April 2011 hearing before the undersigned, which was held at the St. Petersburg RO. A transcript of the hearing is in the claims file. The claim of entitlement to service connection for a right knee disability on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service connection claim for a right knee disability was denied in a May 2000 rating decision, which found that new and material evidence had not been submitted to reopen the claim. 2. The Veteran was informed of the May 2000 rating decision and his appellate rights in a June 2000 letter, and did not file an appeal. 3. Additional evidence received since the May 2000 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The May 2000 rating decision, which declined to reopen the service connection claim for a right knee disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been submitted to reopen the service connection claim for a right knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's petition to reopen the service connection claim for a right knee disability has been granted, as discussed below. Therefore, any error related to the VCAA on this issue is harmless. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran petitions to reopen the previously denied claim of entitlement to service connection for a right knee disability. For the following reasons, the Board finds that reopening is warranted. The Veteran initially submitted a claim of entitlement to service connection for a right knee disability in November 1977. The RO denied the claim in an April 1978 rating decision. Following additional evidence and argument submitted by the Veteran, the RO confirmed the denial of service connection in rating decisions dated in August 1978, October 1978, January 1979, and October 1979. The Veteran perfected an appeal and the Board denied the claim on the merits in a December 1981 decision. The Board's denial of this claim is final. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1100 (2012). The Veteran subsequently petitioned to reopen this claim in August 1999 and April 2000, and these petitions to reopen were denied, respectively, in October 1999 and May 2000 rating decisions. The May 2000 rating decision constitutes the last final adjudication of this claim. The Veteran was notified of this decision and his appellate rights in a June 2000 letter in accordance with 38 C.F.R. § 19.25 (2012). He did not submit a notice of disagreement (NOD). See 38 C.F.R. § 20.200 (2011) (providing, in pertinent part, that an appeal consists of a timely filed NOD in writing); see also 38 C.F.R. §§ 20.201 (2012) (required content of the NOD); 20.302(a) (2012) (time limits for submitting a NOD). Further, no new and material evidence was received within one year of the May 2000 rating decision. See 38 C.F.R. § 3.156(b). Consequently, the May 2000 decision is final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). Under 38 U.S.C.A. § 5108 (West 2002), VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). The 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. Id. In addition, new and material evidence submitted within one year of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered to have been filed in connection with the claim that was pending at the beginning of the appeal period, thereby rendering that claim still pending. See 38 C.F.R. § 3.156(b). 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 the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's service connection claim for a right knee disability was denied on the merits in the December 1981 Board decision because it was found that his diagnosed Osgood-Schlatter's disease of the right knee was a congenital abnormality pre-existing active service, that a later-diagnosed medial meniscus tear was not present during active service, and that a preexisting right knee disorder was not aggravated by active service. When this claim was last adjudicated in the May 2000 rating decision, the RO found that new and material evidence had not been submitted showing that the Veteran's right knee disability was incurred in or aggravated by active service. Thus, in order to reopen this claim, there must be new and material evidence which would help support a finding that the Veteran has a current right knee disorder which was incurred in or aggravated by active service. At the time of the May 2000 rating decision, the evidence of record showed that about a month after his September 1977 entrance into active service, the Veteran reported a three-day history of right knee pain after falling and injuring his knee during physical training in October 1977. He denied a history of prior pain. A few days later he was put on physical profile with a diagnosis of Osgood-Schlatter's disease. A Medical Board report found that the Osgood-Schlatter's disease was a congenital abnormality existing prior to service ("EPTS"). It was noted that the Veteran reported some discomfort in the right knee before entering service. The Medical Board concluded that the Veteran's right knee disorder rendered him unfit for duty and recommended that he be medically separated from active service. He was discharged a few days later. Shortly after service, the Veteran was seen at VA in November 1977 with a complaint of continued right knee arthralgia following a traumatic injury three weeks earlier, which was clearly in reference to the October 1977 basic training injury. On examination, the joint was swollen and tender on palpation. The Veteran was diagnosed with "old trauma sequelae." A December 1977 VA examination report shows that the Veteran complained of recurrent pain, swelling, weakness, and instability of the right knee following the October 1977 in-service injury. An x-ray study showed a loose bone fragment at the level of the anterior tibial process compatible with residual osteochondritis. The examiner concluded that the x-ray findings showed sequelae of Osgood-Schlatter's disease. However, the examiner also noted that the Veteran's tibial tubercle of the right knee was slightly larger than the left knee, and diagnosed traumatic tibial tubercle bursitis. In November 1978, the Veteran underwent a meniscectomy for a torn medial meniscus. A December 1978 letter from the Veteran's private treatment physician, M. Monasterio, M.D., states that the Veteran was first treated by him in November 1978 for right knee pain following the injury during active service. On examination, there was effusion of the right knee with tenderness at the medial joint line and a positive McMurray test with a click in the medial aspect of the joint. He was admitted to the hospital the same month and an arthrotomy was performed. The arthrotomy revealed a torn medial meniscus, which was removed during the operation. The Veteran's symptoms significantly improved following this operation. Dr. Monasterio noted that he had reviewed the Medical Board's finding of Osgood-Schlatter's disease. He opined that while the Veteran might have Osgood-Schlatter's disease, he also "probably" sustained internal derangement of the right knee during basic training and had "probably torn his medial cartilage at that particular time." Consequently, the physician believed that the Veteran's torn cartilage was service-connected. Also of record at the time were several statements authored by witnesses who knew the Veteran prior to his entering active service, including high school teachers, a high school advisor, and a fellow student in intermediate school, all of whom attested that they had never seen him exhibit a disorder of the knee prior to service. The relevant evidence submitted since the May 2000 rating decision includes an August 2009 VA treatment record in which the Veteran's treating orthopedic physician noted that the Veteran had two ganglia on the medial aspect of the right knee, one much larger than the other, which were most likely related to a meniscus injury sustained in active service leading to his meniscectomy. The August 2009 VA treatment record is both new and material. It is new as it was clearly not generated until several years after the May 2000 rating decision. It is also material when viewed in light of the previous evidence of record. At the outset, this opinion is not redundant of Dr. Monasterio's December 1978 letter stating that the Veteran's torn medial meniscus was related to his in-service injury. In this regard, the August 2009 opinion pertains to different pathology which was diagnosed during the pendency of this claim, namely ganglia on the medial aspect of the right knee, and therefore does not merely restate Dr. Monasterio's findings with regard to the torn meniscus. Further, it raises a reasonable possibility of substantiating the claim given the Veteran's well-documented injury during active service. Accordingly, the Veteran's service connection claim for a right knee disability is reopened with the submission of new and material evidence. See 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen the claim of service connection for a right knee disability; the appeal is granted to this extent only. REMAND While the Board regrets the delay, the Veteran's service connection claim for a right knee disability must be remanded for further development to ensure a compete record on appellate review. As discussed above, the August 2009 VA treatment record reflects an opinion stating that the Veteran had two ganglia on the medial aspect of the right knee which were related to a meniscectomy resulting from a meniscal tear during active service. However, the physician also noted that an MRI study upon which this diagnosis was based did not yield a "firm diagnosis." When the Veteran underwent right knee surgery in November 2009, the postoperative diagnosis was osteoarthritis of the right knee. A meniscal tear was not found. Thus, a decision as to whether the Veteran has a current disability of the right knee related to active service cannot be based on the August 2009 VA treatment record alone, as it not clear whether he currently has residuals of a torn meniscus or meniscectomy. While there is competent evidence of record linking a meniscal tear to active service, a competent medical opinion has not been provided as to whether the Veteran's degenerative joint disease of the right knee, or any other current right knee disorder, is related to his in-service injury, to include the resulting meniscal tear and consequent meniscectomy and any other pathology at the time. The Board does not have the expertise to make such a determination itself. See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). On remand, a VA examination of the right knee should be performed. In the examination report, the examiner is asked to identify all current pathology of the right knee-to include degenerative joint disease and any residuals of a torn meniscus and meniscectomy-and whether any or all identified pathologies are related to the Veteran's right knee injury during basic training and his subsequent right knee symptoms of pain, swelling, and instability, as amply documented in the service and post-service treatment records. Efforts should also be undertaken to ensure that the Veteran's complete VA treatment records have been obtained. Accordingly, the case is REMANDED for the following actions: 1. Make arrangements to obtain the Veteran's complete treatment records from the Puerto Rico VA Healthcare System, dated from January 1979 to January 1986; from the West Haven, Connecticut, VA treatment facility, dated from January 1986 to May 1999; and from the Bay Pines and Fort Myers VA treatment facilities, dated from September 1999 forward. 2. Thereafter, the Veteran should be scheduled for a VA examination to assess the nature of his current right knee disability. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the file and examining the Veteran, the examiner should identify all current pathologies of the right knee, to include arthritis, any residuals of a torn meniscus and consequent meniscectomy, any bursitis, and any Osgood-Schlatter's disease. If the Veteran has any congenital defects of the right knee, the examiner should so state and identify each congenital defect. The examiner should render an opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that any current right knee disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should note the injury to the Veteran's right knee during basic training and the subsequent treatment records documenting his ongoing symptoms thereafter, to include pain, swelling, and instability. The examiner should also note the diagnoses rendered shortly after the Veteran's separation from service, including a torn meniscus, which resulted in a meniscectomy and which was attributed to his basic training injury, as well as tibial tubercle bursitis and Osgood-Schlatter's disease. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, after the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs