Citation Nr: 1322181 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-39 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether there is new and material evidence to reopen and grant a claim for service connection for a left knee disorder. REPRESENTATION Appellant represented by: Eric L. Worsham, Esq. WITNESSES AT HEARING ON APPEAL Appellant, H.T., and J.E. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A hearing before the undersigned Veterans Law Judge was held at the RO in March 2011 (i.e. a video hearing). The hearing transcript has been associated with the claims file. 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). FINDINGS OF FACT 1. A claim of service connection for a left knee disorder was denied in a July 2002 rating decision. Evidence presented since the July 2002 decision relates to an unestablished fact necessary to substantiate the claim of service connection. 2. A left knee disorder is related to service. CONCLUSIONS OF LAW 1. The July 2002 RO decision denying the claims of service connection for a left knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the claim of service connection for a left knee disorder has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection of a left knee disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection was previously denied for a left knee disorder in a July 2002 decision. The July 2002 decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service connection was previously denied because although the evidence documented an in-service left knee injury, the evidence did not show the existence of a chronic disorder during or after service. Evidence received in conjunction with the application to reopen includes medical findings of osteoarthritis of the left knee. See, e.g., April 2009 W.O. treatment record. This evidence is both "new" and "material," in that it was previously unseen, it relates to an unestablished fact necessary to substantiate the claim; that is, the existence of a left knee disorder, and it raises a reasonable possibility of substantiating the claim. Thus, the claim is reopened. Having decided that the claim is reopened, the next question is whether the Board can conduct a de novo review without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has provided the Veteran notice as to the requirements for service connection; the July 2009 rating decision and September 2010 statement of the case considered the claim on the merits; and the Veteran's arguments throughout the instant appeal have been on the merits. It is concluded, therefore, that there is no prejudice to the Veteran in conducting a de novo review. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). September 1971 treatment records reflect the Veteran's history of injuring the left knee while playing football. The Veteran explained that his cleat stuck and his knee bent laterally. The knee was stable but there was effusion. X-ray images were negative for abnormality. The Veteran was found to have a mid collateral ligament strain and provided a cylinder cast. A record from one week later indicates that the Veteran was given a new cylinder cast. An October 1971 treatment record indicates that an orthopedic consultation was requested because of a "cast change." A November 1971 treatment record reflects the Veteran's history of left knee problems. The record notes that the Veteran had taken off the cast he was given for the left knee valgus strain "on Tuesday," and then went to the gym and fell, reinjuring the knee. The record notes that the knee was re-wrapped, and the Veteran was referred to the orthopedic clinic. The February 1972 separation examination record reflects normal clinical findings for the lower extremities and a negative history as to "trick' or locked knee." In April 2002, the Veteran submitted lay statements from former work supervisors who reported that the Veteran had left knee problems between 1974 and 1998. An April 2009 W.O. treatment record reflects the Veteran's history of recent increase in the severity of his left knee pain. The examiner reported a diagnosis of osteoarthritis of the left knee. The physician noted the Veteran's history of longstanding left knee pain since sustaining a ligamentous injury during a football game during service. The physician determined that the Veteran's arthritis was secondary to an "unstable knee that occurred while playing football in the military." See also October 2010 treatment record. A July 2009 VA examination record reflects the Veteran's history of injuring the left knee during service, which resulted in bad swelling and was treated with casting and crutches. The Veteran reported discomfort since the injury. After examination and review of the file, the examiner diagnosed degenerative arthritis. The examiner determined that it was less likely than not that the left knee arthritis was related to injuries in service. The examiner reported that "from a functional standpoint, [the knees] have come along fairly consistently side to side with the left being a little worse than the right." The examiner believed the "major cause" of the left knee arthritis was "normal aging and wear." The examiner explained that the knee functioned well after the injury and was described as not being symptomatic at separation. At his hearing in March 2011, the Veteran testified that he had left knee problems, including stiffness, after the injury in September 1971. He denied reinjuring the knee in November 1971 and reported that he did not receive treatment after separation because he did not have health insurance. After review of the evidence, the Board finds service connection is warranted for a left knee disorder. The Board acknowledges that the service medical records do not reflect any findings or histories of recurrent left knee pain or problem and that the separation examination reflects normal clinical findings for the lower extremity and a negative history as to "trick' or locked knee." The Board further acknowledges that a VA examiner has provided a negative opinion based, in part, on the Veteran's negative history as to symptoms after the injury, to include at separation. Although the Veteran did not report knee problems at separation or after the in-service injury, the Board finds the Veteran's history of recurrent left knee pain since the injury is not incredible, particularly in light of the statements from the Veteran's former supervisors and the absence of a contradictory history of record of no knee pain. Furthermore, the Board finds the VA examiner's opinion has diminished probative value because the examiner did not discuss the evidence of worsened arthritis in the left knee and address whether this was due to the in-service injury and did not address whether service was a "minor" (as opposed to major) cause of the osteoarthritis. Based on the evidence of increased degenerative changes in the left knee, the competent evidence of left knee pain since the injury in service, and the private physician's opinion, the Board finds the evidence is in equipoise as to whether the Veteran's left knee disorder is related to service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). VA has a duty to notify and assist claimants for benefits. The decision above reopens and grants service connection for a left knee disorder. As such, there is no further need to discuss compliance with the duties to notify and assist. ORDER New and material evidence having been received, the claim for service connection for a left knee disorder is reopened, and service connection is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs