Citation Nr: 1324612 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-16 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from May 1941 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. (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).) In June 2013, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. By a May 1995 rating decision, the RO denied the Veteran's claim of service connection for a bilateral knee disorder on the basis that the evidence did not show that such was incurred in, or aggravated, by military service or had existed continuously since separation from service. 2. The evidence received since the May 1995 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral knee disorder, and raises a reasonable possibility of substantiating that claim. 3. The Veteran's bilateral knee arthritis is attributable to his military service. CONCLUSIONS OF LAW 1. The May 1995 rating decision that denied service connection for bilateral knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012). 2. The evidence received subsequent to the May 1995 rating decision is new and material, and the claim for service connection for a bilateral knee disorder reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a)(2012). 3. Resolving reasonable doubt in favor of the Veteran, his bilateral knee arthritis and resulting right total knee replacement are the result of injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim to Reopen In the current appeal, the Veteran contends that his current bilateral knee disorder is related to an injury that occurred in service. In this regard, the Board notes that service connection for this disorder was denied by the RO in a May 1995 rating decision. The Veteran was notified of this decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not appealed become final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(d)(3). The Veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). In September 2008, the Veteran essentially requested that his claim for service connection for a bilateral knee disorder be reopened. In order to reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen in this case, new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4) , which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Although it appears that the RO reopened the Veteran's claim for service connection for the above-referenced claim in the April 2011 Statement of the Case, the Board is not bound by that determination and is, in fact, required to conduct an independent analysis in claims involving final rating decisions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this regard, using the guidelines discussed below, the Board finds that the Veteran has submitted new and material evidence. Accordingly, the claim of entitlement to service connection for a bilateral knee disorder will be reopened. As previously noted, the Veteran's claim for a bilateral knee disorder was last considered and denied in the May 1995 rating decision. The evidence associated with the Veteran's claims file at the time of the May 1995 rating decision includes, but is not limited to, the Veteran's DD 214 and service treatment records; a December 1949 VA examination report; a March 1953 VA medical report; an October 1983 and November 1994 application seeking service-connected compensation for his claimed disorder; a September 1981 operation report; a copy of a newspaper article pertaining to new surgical procedures being utilized for treatment of the knee; an October 1994 treatment report from the Veteran's private physician, M.R., M.D.; and the Veteran's own lay assertions. The Veteran's service treatment records reflect that he injured and received treatment for his left knee in service. Specifically, these records reflect that the Veteran developed a contusion after being struck in the leg by a hatch beam while performing his military duties. The Veteran's post-service treatment records further show that he continued seeking treatment for ongoing knee problems very soon after his separation from service. This medical evidence will be discussed in greater detail in the decision below. The evidence associated with the Veteran's claims file subsequent to the May 1995 rating decision includes, but is not limited to a February 2010 evaluation report issued by the Veteran's private physician, C.P., M.D.; a February 2010 bilateral knee x-ray report; treatment records issued by the Veteran's primary care physician, D.D., M.D., and dated from December 2004 to April 2011; an April 2007 Emergency Service report; a June 2013 letter from Dr. D.; the June 2013 hearing transcript; and the Veteran's own lay assertions. In statements dated in November and December 2008, the Veteran related his bilateral knee condition to his in-service injury. In the December 2008 statement, the Veteran provided his post-service medical history and described the various procedures he had undergone throughout the years in an effort to alleviate his knee pain and discomfort. The Veteran also indicated that his knee problems continued after his separation from service and grew progressively worse throughout the years. During his February 2010 evaluation with Dr. C. P., the Veteran reported that he sustained injuries to his knees while serving in the military during World War II. He went on to describe a history of ongoing knee problems since his separation from service, and further listed the various surgical procedures he had undergone throughout the years in an effort to help improve his bilateral knee condition. At the June 2013 hearing, the Veteran described the circumstances surrounding his in-service knee injury as well as the knee symptoms he experienced after being struck in the leg by a high beam. According to the Veteran, his knee problems continued to bother him after his separation from service. See June 2013 Hearing Transcript, pp. 5- 8. In Shade, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. See Davidson v. Shinseki, 581 F.3d 1313, 1315-6 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the May 1995 rating decision. After reviewing the record, the Board finds that the additional evidence received since the final May 1995 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a). The majority of this evidence is certainly new, in that it was not previously of record. The Board finds the Veteran's lay assertions and hearing testimony to be new and material evidence within the provisions of 38 C.F.R. § 3.156. In the December 2008 statement as well as during the June 2013 hearing, the Veteran reported on-going and chronic symptoms of knee pain since his period of service. He also attributed his current bilateral knee disability to his in-service injury. At the February 2010 treatment visit, the Veteran provided his medical history and described a history of ongoing medical treatment for his knees that spanned nearly sixty years since his separation from service. The Veteran's lay assertions and hearing testimony of continuing problems and ongoing symptoms were not of record at the time of the May 1995 rating action. The Veteran is competent and credible with respect to these assertions. His lay assertions and hearing testimony relate to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that new and material evidence has been presented to reopen his previously denied claim of service connection for a bilateral knee disorder. II. Analysis The Veteran contends that he injured his knees in service when a hatch beam fell and struck him across his legs. He further contends that his current bilateral knee disorder and ongoing knee problems are due to this in-service injury. See Veteran's statements dated in November 2008 and December 2008; see also June 1984 and June 2011 substantive appeals and February 2010 notice of disagreement (NOD). Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation only applies to the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. The Board finds that service connection for a bilateral knee disorder is warranted. In making this determination, the Board highlights that the post-service medical evidence of record demonstrates that the Veteran has been diagnosed with a bilateral knee disorder. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Specifically, report of the September 1981 operation reflects that the Veteran was admitted to the hospital and diagnosed as having a "[t]ear posterior horn of medial meniscus and degenerative arthritis medial joint compartment" in the right knee. He underwent a right knee arthroscopy, arthroscopic medial meniscectomy, and chondroplasty of the medial femoral condyle and patella and was discharged with a postoperative diagnosis of "[s]ame plus Grade II to III chondromalacia of the patella." An April 2007 Emergency Service Report reflects that the Veteran was admitted to the Emergency Room with complaints of pain at the medial aspect of his left knee. After evaluating the Veteran and conducting an x-ray of the left knee, the physician diagnosed him with arthritis of the left knee and a possible acute left knee sprain. Report of the February 2010 bilateral knee x-ray revealed mild degenerative changes of the left knee and a right total knee replacement with possible loosening or infection. The Veteran was afforded a VA examination in April 2011, and after evaluating the Veteran and reviewing the diagnostic test results, the VA examiner diagnosed the Veteran with bilateral osteoarthritis, history of right knee replacement and left knee open meniscal and chondral repair. Turning to the second element required for service connection, the Veteran's service treatment records reflect that he presented at a military treatment facility in October 1943 with signs of a contusion on his left leg and knee after being struck in the leg by a hatch beam while working on the docks. A November 1943 treatment record reflected a diagnosis of chronic bursitis that was moderate in nature and secondary to a blow received by the hatch beam. The Veteran was seen again several days later with complaints of ongoing pain and stiffness in his left knee since his October 1943 injury. It was noted that the Veteran had received treatment in the form of methyl salicylate massages, strapping and stockingette since the date of his injury, but had shown little improvement. He was thereafter transferred to the 29th Station Hospital. An x-ray of the left knee was performed and shown to be negative. At the August 1945 separation examination, when asked to list any significant diseases or injuries, it was noted that the Veteran injured his knees in October 1943 and had been hospitalized for a period of one week. While these records do not reflect a diagnosis of a bilateral knee disorder, and the clinical evaluation of the Veteran's musculoskeletal system was clear for any abnormalities, documentation reflecting the Veteran's complaints of, and treatment for knee problems after being struck in the leg by a hatch beam in October and November 1943, is sufficient in establishing the second element required for service connection-an in-service event. Finally, turning to the third element required for service connection, the Board notes that in an October 1994 medical opinion, the Veteran's then private physician, Dr. M.R., indicated that the Veteran had been his patient since August 1981, and that the Veteran first presented with a history of having injured his knees after being struck by a hatch beam in service. Dr. R. reviewed and recited the Veteran's medical history at length, and noted that after service, the Veteran experienced increasing discomfort in his knees and subsequently underwent an open debridement of the left knee for progressive degenerative arthritis. According to Dr. R., over the next twenty-five years, the Veteran's knee pain progressively worsened and x-rays dated in 1981 revealed early degenerative arthritis of the medial joint compartments in both knees. In light of the fact that the Veteran was unresponsive to conservative care, Dr. R. decided to perform an arthroscopy, medial meniscectomy and arthroscopic debridement of the degenerated articular cartilage of the patella and medial joint compartment. He noted that the Veteran showed signs of improvement until April 1989, when he presented with complaints of progressive increasing right knee pain at night and during rest. Repeat x-rays at that time revealed progressive degenerative arthritis of the medial joint compartment of both knees. It was noted that the Veteran had given up all activities including walking, and subsequently underwent a right total knee replacement in March 1990. Based on his review of the Veteran's medical history as well as his previous observations and evaluations of the Veteran, Dr. R. concluded that there was no question that the Veteran's "progressive degenerative arthritis of the knees, including the three operative procedures required on his right knee, is a direct result of the traumatic knee injuries which occurred while in...service in 1943 and, absent that injury, he would, today, have very normal serviceable knees." The Board notes that the Veteran was also afforded a VA examination in connection to his claimed disorder in April 2011. During this examination, the Veteran provided his medical history and described symptoms of giving way, pain, stiffness, and weakness in both knees. Based on his evaluation of the Veteran, as well as his review of the diagnostic test results, the examiner diagnosed the Veteran with bilateral osteoarthritis and determined that this disorder was less likely as not caused by or a result of service. According to the examiner, the service treatment records did not document objective findings "consistent with a high energy injury to the soft tissue or osseous structures of veteran's knees, such as fracture, dislocation, or internal derangement." The examiner further noted that in the absence of these findings, "a post traumatic or chronic inflammatory process is less likely than not." In addition, the examiner noted that the Veteran had active service for less than ten years, and any microtrauma he sustained in service "would be insufficient to initiate and sustain a posttraumatic or chronic inflammatory process, since the literature suggests a 10 year exposure as the threshold value." In considering the evidence of record, the Board finds that the Veteran's current bilateral knee disorder cannot be reasonably disassociated from his in-service knee trauma. In arriving at this decision, the Board relies on the Veteran's service treatment records which document his complaints of, and treatment provided for, his knee injury. The Board also relies on the Veteran's post-service assertions that he has continued to experience knee pain since his discharge from service, and the positive October 1994 private opinion issued by his treating physician. Indeed, the Board finds that the Veteran is competent to report his experiences and symptoms during and since service. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or she had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, based on the evidence submitted and testimony provided in support of his claim, the Board finds the Veteran credible with respect to his assertions. The Board acknowledges the April 2011 VA medical opinion, which does not relate the Veteran's bilateral knee disorder to service. However, the VA examiner does not appear to have given much consideration to the Veteran's assertions that he experienced ongoing symptoms of knee pain since service. As previously noted above, the Board finds the Veteran's assertions with regard to his ongoing symptoms of knee pain to be competent and credible. Moreover, the post-service medical evidence of record contains documentation dated not long after the Veteran's separation from service, reflecting his complaints of, and treatment for, pain and discomfort in his knees. Indeed, the majority of the Veteran's post-service treatment records consistently reflect his complaints of knee pain, regardless of what health-related ailment he was seeking treatment for. Furthermore, the Board simply finds the positive medical opinion of record to be more probative in light of the fact that the opinion is based upon the physician's repeated experiences treating the Veteran as well as his familiarity with the clinical history of his disability. In a claim for VA benefits, "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert, 1 Vet. App. at 54. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit-of-the-doubt doctrine, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. Thus, the Board finds that the VA examiner's opinion has less probative value, and, when weighed against the Veteran's reported onset in service, the Veteran's competent assertion that he has continued to experience knee pain since service, and the positive October 1994 opinion, the Board finds the evidence is at least in equipoise that a bilateral knee disorder is related to his in-service knee trauma. As such, the Board will resolve reasonable doubt about the connection between the current bilateral knee disorder and the in-service injury in the Veteran's favor. Accordingly, the Board concludes that the evidence supports service connection for bilateral knee disorder. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been submitted, the claim of service connection for bilateral knee disorder is reopened, and the application to reopen is granted. Service connection for bilateral knee arthritis, including the resulting right total knee replacement, is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs