Citation Nr: 1318429 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-26 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a right knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1971 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which reopened service connection for a right knee disorder but denied service connection on the merits. The Veteran appealed the denial of service connection on this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal which are not already of record. FINDINGS OF FACT 1. A March 2007 rating decision denied service connection for degenerative joint disease of the right knee with a cutaneous nerve crush injury; the Veteran did not file a timely Substantive Appeal to the Board following the March 2007 rating decision. 2. The evidence associated with the claims file subsequent to the March 2007 rating decision relates to unestablished facts that are necessary to substantiate the Veteran's service connection claim regarding in-service onset and continuity of symptomatology; the newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran did not engage in combat with the enemy during service 4. The Veteran injured his right lower extremity in service. 5. The Veteran was treated on multiple occasions for right knee pain during active service, and right knee pain became chronic during service. 6. Symptoms of right knee pain, numbness, and burning have been continuous since service separation. 7. Degenerative joint disease in the right knee and right leg cutaneous nerve crush injury are etiologically related to active service. CONCLUSIONS OF LAW 1. The March 2007 rating decision denying service connection for degenerative joint disease of the right knee with a cutaneous nerve crush injury became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Evidence received since the March 2007 rating decision is new and material, and service connection for a right knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. Resolving reasonable doubt in the Veteran's favor, degenerative joint disease of the right knee arthritis is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. Resolving reasonable doubt in the Veteran's favor, cutaneous nerve crush injury of the right leg is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting, in full, the benefits sought on appeal. Accordingly, because the benefits sought are granted, VA has no further duty to notify or assist. Reopening Service Connection for a Right Knee Disability Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's determination as to whether new and material evidence has been submitted, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the claim for service connection for a right knee disability. In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In a March 2007 rating decision, the RO denied a claim for service connection for degenerative joint disease of the right knee with a cutaneous nerve crush injury. The RO based the denial on a lack of evidence showing that degenerative joint disease and chronic mononeuritis had manifest during service or to a compensable degree within one year of separation from service. The Veteran filed a notice of disagreement in April 2007; however, following the issuance of a statement of the case by the RO in November 2007, the Veteran did not submit a timely substantive appeal to the Board regarding the denial. Thus, the March 2007 rating decision denying service connection for a right knee disability 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. §§ 3.156(a),(b), 20.302, 20.1103. Since the March 2007 rating decision, VA has received several statements from the Veteran including a December 2009 document in which he describes a year-by-year account of the claimed disability dating back to service. The Veteran's account includes endorsements of chronic in-service pain and numbness, similar symptoms in 1977 (the year he separated from service), throughout 1978, and continued symptoms until the present day. In determining whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 513. When credibility is presumed, as is required when determining solely whether to reopen a previously denied claim, the December 2009 statement from the Veteran shows evidence of chronic in-service symptomatology and compensable manifestations within one year of separation from service. As this represents evidence not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen service connection for a right knee disability. Service Connection for a Right Knee Degenerative Joint Disease and Cutaneous Nerve Crush Injury Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As a preliminary matter, the Board notes that "degenerative joint disease," "osteoarthritis," and "degenerative arthritis" are interchangeable terms. See Dorland's Illustrated Medical Dictionary 1365 (31st ed.2007). Thus, claimed right knee degenerative joint disease, or arthritis, is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Additionally, the Veteran's cutaneous nerve crush injury is an organic disease of the nervous system, another "chronic disease" listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). The Board also notes that where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); 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). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran claims to have injured his right knee during service when, while performing maintenance on a truck, the vehicle came off of its lifting jack and crushed his right leg. The Veteran does not allege that the claimed injury occurred as a result of combat against enemy forces nor does he allege that he ever had such combat. Furthermore, a review of his official military documentation contained in his claims file does not otherwise indicate that the Veteran engaged in combat against enemy forces as contemplated by VA regulations. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not "engage in combat" with the enemy during service and the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. The Board next finds that the Veteran has current diagnosed disability referable to the right lower extremity. The February 2007 VA examiner reported that an August 2004 x-ray showed moderately advanced osteoarthritis, representing chronic degenerative change without evidence of fracture or dislocation. The diagnoses were degenerative joint disease of the right knee and cutaneous nerve crush injury. The Board finds that the Veteran injured his right lower extremity in service, which included to the knees. In September 1976, during service, the Veteran was seen for an injury to both knees resulting from a truck accident. Pulse was good bilaterally, he had no sensory loss, and range of motion was full. Consultation report indicated that the Veteran had been run over by a truck and that he had bilateral leg pain. There were contusions on the right medial thigh and left lateral thigh. The right knee had effusion and his legs were stable, without deformity. Follow-up x-ray imaging showed no fractures, however there were abrasions on the lower thighs and both knees. The Board finds that the evidence is in equipoise on the question of whether right knee pain became chronic during service. At the time of the September 1976 truck injury, the diagnosis was contusion, the complaints included pain, the findings included effusion, and the examiner noted no fractures, deformity, instability, or limitations of motion of the knees. Following the September 1976 truck accident, the Veteran was seen a few months later, at which time he reported that he still had residual symptoms. On examination in January 1977, the Veteran endorsed swollen or painful joints, cramps in his legs, and "trick" or locked knees associated with the September 1976 injury. The examination report indicated stable right thigh and knee, without effusion. There was slight induration, echinosis, and paresthesia of the right medial distal thigh musculature. The Veteran's right thigh and right knee injury was described as "resolving," although he continued to have problems with his right knee. In March 1977, the Veteran complained of paresthesia anesthesia at the right knee, and pain when standing for long periods; however, pulses were good and range of motion was within normal limits. On service separation examination for hardship in July 1977, the Veteran's lower extremities were "normal"; however, a right leg injury with secondary anesthesia was noted. The Veteran denied "trick" or locked knees, as well as arthritis, rheumatism or bursitis; however, the Veteran endorsed having swollen or painful joints and indicated that he had some numbness in the medial left thigh but no loss of strength. In this case, although arthritis was not diagnosed in service, symptoms of the disease had become chronic during service as shown by multiple complaints referential to the right knee between the time of the injury in September 1976 and the time of separation from service in July 1977. The Board will resolve reasonable doubt in the Veteran's favor on this question to find that symptoms of knee disability were chronic in service. Where a chronic disease begins in service, or there is continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). The Board also finds that the evidence is in equipoise on the question of whether the Veteran experienced continuous symptoms of right knee pain, numbness, and burning since service separation in July 1977. Following separation from service in July 1977, there is no record of treatment for many years; however, when the Veteran sought a VA neurology consultation in August 2004, he presented a history of longstanding right knee pain. He reported that his knees had been run over during service and that he had been treated conservatively following the accident. The Veteran reported that since the accident in service he has had intermittent right knee pain which occurred two to three times a week. The Veteran denied focal weakness, but complained of numbness since the accident. The Veteran denied having been evaluated by an orthopedic surgeon in the past, and had been following up with his primary care physicians. Physical examination in August 2004 revealed normal stance and gait with fairly good strength in the extremities. Deep tendon reflexes were symmetrical, and examination of the knee showed no swelling or evidence of any acute or inflammatory changes. Joint movements of the knee were fairly normal and McMurray test did not reveal any significant pain. On palpation, the Veteran had some tenderness over the knee joint on the medial side, as well as just below the patella on the right side. The neurologist found no obvious pathology, but x-ray examination was needed for confirmation. The Veteran's mother submitted a statement indicating that the Veteran has complained of numbness in his legs since service. The Veteran's brother, a registered nurse, also wrote a statement in which he said the Veteran had complained of pain with numbness and burning in his right leg. He suggested the Veteran had nerve damage. A May 2006 letter from a private physician indicated that the Veteran had "chronic nerve damage with numbness on the medial aspect of his right knee." The physician stated that he did not anticipate that the Veteran's condition would improve and the condition was expected to be permanent. On VA examination in February 2007, the Veteran reported that right leg and knee problems had begun in 1976 when he was run over by a truck. His current symptoms included right knee pain, paresthesias and numbness on the inside aspect of the right knee, and tingling, burning and weakness of the right leg. On examination, the examiner found no deformity, tenderness, crepitation, or instability of the right knee. There was some focal decrease in pin prick sensation about the medial aspect of the right knee, but soft touch remained intact. Range of motion of the right knee was from zero to 130 degrees with pain beginning at 130 degrees. Finally, in December 2009, the Veteran submitted a letter in which he described the entire history of his right knee injury. The Veteran reported that following the injury, he began wearing a stocking knee brace on his right leg and was told by a physician at Fort Hood, Texas, to continue using the stocking as the ligaments and muscles would take significant time to heal. Throughout his year-by-year account, the Veteran endorsed continuous pain, burning and a pulling sensation in the right leg with numbness when standing for more than five minutes. He also endorsed the continued use of a brace or stocking for support of his right knee. Central to the Veteran's claim is his contention that he has had continuous symptomatology since his 1976 accident. See 38 C.F.R. § 3.303(b). Because pain, burning and numbness are symptoms capable of lay observation, the Veteran's endorsements of such symptoms are competent. See Layno, 6 Vet. App. 465. However, the Board must also consider the Veteran's credibility. In considering the lay and medical history the amount of time that elapsed between military service and first post-service evidence of complaint or treatment can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board is cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. As such the Board may properly consider the personal interest a claimant has in his or her own case, but is not free to ignore a veteran's assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Here the first VA treatment of record was on August 13, 2004, several days prior to VA's receipt of the Veteran's original claim of service connection. During that initial treatment, the Veteran endorsed continuous knee symptomatology since his in-service accident. Because the Veteran was then seeking only medical treatment, and had not yet filed a claim for compensation, it seems likely that he would report events carefully and accurately. Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. A review of the Veteran's statements to treating physicians, the VA examiner, and those statements submitted to VA for compensation purposes reveals that the Veteran has been largely consistent with his reports of in-service injury followed by a more than 30-year history of pain and neurologic symptoms. The Board is aware that in recounting his in-service injury, the Veteran has variously stated the year in which the event occurred as 1974, 1975, and 1976. Given the Veteran's consistency in reporting other details of the event, and given that the Veteran's accounting is otherwise consistent with contemporaneous service treatment records, the Board finds that the inconsistently reported year is incidental and has no effect on the Veteran's overall credibility. Based on the foregoing, the Veteran's endorsements of in-service onset, chronic symptoms since service and post-injury continuity of symptomatology relating right knee degenerative joint disease are credible. Similarly, the Veteran's contentions of continuity of symptomatology associated with cutaneous nerve crush since his in-service injury are also credible. Based on this evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran also experienced continuous knee symptomatology since service separation. See 38 C.F.R. § 3.303(b). In total, the evidence shows an in-service injury of the right lower extremity, chronic in-service symptomatology, continuous symptomatology since service, and a current diagnosis of right lower extremity degenerative joint disease. Based on the foregoing, service connection may be granted for right knee arthritis on a presumptive basis. 38 C.F.R. §§ 3.303(b), 3.309. Because the evidence in this case shows both "chronic" in-service symptoms and "continuous" post-service symptoms, the criteria for presumptive service connection for "chronic disease" have been met under 38 C.F.R. § 3.303(b). See 38 C.F.R. §§ 3.307, 3.309. The Board notes that, while a VA examiner attempted to render a nexus opinion in this case on the question of relationship of current degenerative joint disease in the right knee and right leg cutaneous nerve crush injury to active service, the examination resulted in no nexus opinion. The February 2007 examiner opined that whether the current right leg and knee disabilities originated with an in-service injury could not be determined without resort to speculation, as the in-service injury did not require hospitalization and radiographs were negative for fracture, and there was a greater than 25 year interval without treatment or complaints, including associated neurologic symptoms. Because the evidence supports a grant of service connection on a presumptive basis as a chronic disease, the Board need not reach the question of direct service connection, that is, whether the current knee disabilities are related to service by competent medical evidence. See 38 C.F.R. § 3.303(d). Consequently, the adequacy of the medical opinion and the weight of the medical opinion on the question of direct service connection are not relevant to the issue of service connection for right knee disability. Resolving reasonable doubt in the Veteran's favor, the evidence of record reveals that both right knee arthritis and associated cutaneous nerve crush injury were incurred in service, symptoms became chronic in service, and symptoms have been continuous since service; the criteria for service connection have been met for the reasons stated above. 38 C.F.R. § 3.303. Accordingly, service connection is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the appeal to reopen service connection for a right knee disability is granted. Service connection for degenerative joint disease of the right knee is granted. Service connection for cutaneous nerve crush injury of the right leg is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs