Citation Nr: 1311017 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 11-01 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disability. 2. Entitlement to service connection for left hip tendonitis. 3. Entitlement to service connection for right knee degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and I.H. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1954 to November 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing held before the undersigned, via videoconference, in January 2013. A transcript of that hearing is of record. Service connection for a left hip disability was denied in an unappealed March 2003 decision, on the basis that a left hip disability was not incurred in or aggravated by service. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Nonetheless, the Veteran's current claim has not been characterized by the Board as an attempt to reopen a previously denied claim. Claims based upon distinctly diagnosed diseases or injuries should be considered distinct claims for the purposes of 38 U.S.C.A. § 7104(b) (West 2002). See Boggs v. Peake, 520 F.3d. 1330, 1336 (Fed. Cir. 2008). Because the Veteran is currently diagnosed with left hip tendonitis/bursitis, which was not diagnosed at the time of the last final rating decision; the Board construes the current appeal as a new claim, rather than an application to reopen previously denied claim. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). FINDINGS OF FACT 1. Service connection for a right knee disability was denied in an unappealed January 1994 decision on the basis that it was not incurred in service. 2. Evidence received since the January 1994 rating decision was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises a reasonable possibility of substantiating the claim for service connection for a right knee disability. 3. Resolving all doubt in favor of the Veteran, right knee degenerative joint disease and left hip tendonitis/bursitis were incurred as a result of his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a right knee disability have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for left hip tendonitis have been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 3. The criteria for service connection for right knee degenerative joint disease have been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. New and Material Evidence Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Veteran. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). In the rating decision on appeal, the RO reopened the previously denied claim for service connection for the right knee and denied it on the merits. The Board must decide whether the Veteran has submitted new and material evidence to reopen the claims regardless of the RO's action. Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). New evidence means existing 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Service connection for a right knee disability was denied in a January 1994 rating decision on the basis that the evidence did not show a right knee disability was incurred as a result of service. The Veteran was notified of this decision, but did not appeal. No additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. Therefore, that rating decision became final based on the evidence then of record. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.1105 (2012). The RO received the instant petition to reopen the claim in September 2008. At the time of the last final rating decision, the evidence of record consisted of the Veteran's service treatment records, a September 1993 private treatment record, VA medical records, and a transcript of testimony from a May 2000 RO hearing. Since the last final rating decisions, the evidence includes VA outpatient treatment records dated from 2003 through 2009, a June 2010 private medical opinion, VA examination reports dated in July 2009 and April 2012, and a February 2013 transcript of additional personal testimony. The evidence received since the last final rating decision is new, as it was not previously considered the RO. The Veteran and his wife's February 2013 testimony (essentially that he experienced right knee symptoms during service, and that he has continued to experience similar symptoms after service, which further increased after a total left knee replacement procedure) is also material as it relates to the unestablished nexus element and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability. New and material evidence has been received to reopen the claim for service connection for a right knee disability. Reopening the claim is warranted. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection for certain chronic diseases, including degenerative joint disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Service treatment records reflect no complaints or treatment related to the right knee or left hip. The records reflect that the Veteran sustained a twisting injury to the left knee and subsequently had recurrent symptoms of pain, swelling, give-way, and locking in that knee. A September 1993 private treatment record shows the Veteran was diagnosed with moderate osteoarthritis in both knees, with the right knee symptomatology greater than the left. He reported that he had injured his knees during boot camp in 1954, but only briefly received treatment prior to entering active duty. He indicated that his knees had been worsening over time. VA outpatient treatment records and a June 2000 VA examination report show recurrent symptoms of left knee of pain, swelling, give-way, and locking were reported, and the Veteran indicated these symptoms had continued since discharge from service, and even after his lateral medial meniscectomy in October 1999. VA treatment records dated in June 2006 reflect an initial complaint of left hip pain. On physical examination, no hip pathology was found. However, degenerative joint disease was found in the right knee and the knee was symptomatic. An August 2007 outpatient note shows the Veteran reported that he had experienced left hip pain for years. He underwent a left knee total knee replacement in August 2007 at a VA facility. An August 2007 outpatient note indicates that he was favoring his left leg following the surgery. In May 2008 the Veteran reported that his left hip had been bothering him since around the time of his left knee replacement. He was diagnosed with left hip trochanteris bursitis. In an October 2008 clinical note, the Veteran's orthopedic surgeon briefly discussed the left and right knee clinical history. He noted that the Veteran still walked with a limp and had pain in his left knee, thus the left hip bursitis may to some extent be related to his altered gait. The surgeon further opined that the right knee degenerative joint disease was more likely age-related but did not offer a rationale for this opinion. The Veteran was afforded a VA examination in July 2009. He reported that his right knee hurt every time his left knee did. He also reported that physical therapy received for his left knee aggravated his right knee symptoms. With respect to his hip, he reported that it began hurting just prior to his left knee total knee replacement. Following review of the claims file and physical examination, the examiner stated that he could not determine whether the right knee is secondary to the service-connected left knee degenerative joint disease without resorting to speculation, but it is more likely that the advanced arthritis in his right knee is age-related. With regard to the left hip, he opined that it is less likely related to military service or the service-connected left knee total knee replacement. The rationale was that the hip pain had onset a few months prior to the left knee replacement. In June 2010, Dr. Vanoff, a private orthopedist, opined that the Veteran's bilateral knee pain has resulted in an abnormal gait pattern and has contributed to his left hip pain. The Veteran was afforded another VA examination in April 2012. The examiner stated that he could not resolve the question of whether it is at least as likely as not that the right knee degenerative joint disease and left hip tendonitis/chronic bursitis are aggravated by the service-connected left knee replacement, without resorting to speculation. He provided a rationale for why he could not provide a non-speculative opinion, but in doing so indicated that, while the Veteran's history is "compelling," it is considered "hearsay." At the Veteran's hearing before the undersigned, he testified that he injured his left knee in July 1954. He further testified that his left hip and right knee began to bother him prior to discharge from service and continued to bother him after discharge. His wife, I.H., testified that the Veteran complained about his left hip and right knee subsequent to the left knee accident, and prior to discharge. She further averred that he continued to complain after service, although he never went to the doctor and self-treated with over the counter medication. She also indicated that there have been no intervening accidents involving the left hip or right knee after since service, and the left hip and right knee conditions have worsened throughout the years. The Veteran also stated that his left hip and right knee have gotten worse since the left knee replacement surgery in 2007. Based on the evidence of record, and resolving doubt in the Veteran's favor, service connection for the right knee degenerative joint disease and left hip tendonitis/ bursitis is warranted. With respect to the left hip tendonitis/bursitis, a VA orthopedic surgeon and a private orthopedist (Dr. Vanoff) have both opined that it is likely related to the Veteran's altered gait, which they both note is due to his service-connected left knee disability and/or the right knee degenerative joint disease). With respect to the right knee, the Veteran has competently and credibly reported that his right knee has been symptomatic ever since he injured his left knee in service, though he has primarily self-treated his symptoms. He has also competently and credibly reported that the recurrent symptomatology in his left knee, and more recently the left total knee replacement surgery, caused him to alter his gait. His statements are corroborated by his wife's competent and credible testimony, the August 2007 VA treatment record which shows he was observed to favor his left leg after the left knee total knee replacement, and Dr. Vanoff's June 2010 opinion that the bilateral knee pain did result in an altered gait. This competent and credible lay evidence of onset of right knee symptoms in service and identical recurrent symptoms since service (with increased severity following surgical treatment of the service-connected left knee disability) is evidence in favor of the claim. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.303. The VA examiners have indicated that they cannot provide a nexus opinion for either disability without resorting to speculation. 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). Furthermore, it is significant that each examiner limited their analysis to whether the right knee degenerative joint disease and left hip tendonitis/bursitis are specifically caused or aggravated by the left knee total knee replacement. There appears to have been no consideration of the Veteran's reported 50+ year history of recurrent left knee symptoms and how that may have impacted the right knee; or the fact that he reported his right knee symptoms began in service and have been recurrent ever since with worsening since the left knee total knee replacement, which further lessens the probative value of these opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In fact, the July 2009 examiner called the lay evidence 'speculative' and the April 2012 examiner called it 'hearsay.' A medical opinion based solely on the absence of documentation in the record is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This places the evidence in a state of relative equipoise, and all doubt must be resolved in favor of the Veteran. Service connection for right knee degenerative joint disease and left hip tendonitis/bursitis is warranted. ORDER Service connection for left hip tendonitis is granted. Service connection for right knee degenerative joint disease is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs