Citation Nr: 1326233 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-44 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for postoperative residuals of an arthrotomy of the left knee with traumatic osteochondritis, dessicans, and arthrosis. 2. Entitlement to service connection for degenerative changes of the right knee, to include as secondary to postoperative residuals of an arthrotomy of the left knee with traumatic osteochondritis, dessicans, and arthrosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's request to reopen his claim for service connection for postoperative residuals of an arthrotomy of the left knee with traumatic osteochondritis, dessicans, and arthrosis, and denied his claim for service connection for degenerative changes of the right knee. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a left knee injury was denied in an April 1979 rating decision, the Veteran did not appeal this denial, and the decision became final. 2. The evidence received since the April 1979 rating decision is duplicative, cumulative, and redundant, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disorder. 3. There is no evidence of an in-service right knee event, injury, or disease. CONCLUSIONS OF LAW 1. The April 1979 rating decision that denied the Veteran's claim of entitlement to service connection for a left knee injury is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the final April 1979 rating decision, which denied a claim of entitlement to service connection for a left knee injury, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a), 20.1103 (2012). 3. The requirements for establishing service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a December 2008 letter issued prior to the February 2009 rating decision, VA provided the Veteran with notice regarding what information and evidence was needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The December 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In claims to reopen based on new and material evidence, the duty to notify also requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The December 2008 notice letter complies with the holding of the United States Court of Appeals for Veterans Claims (Court) in Kent. In particular, the letter specifically informed the Veteran of the type of evidence that was lacking in the prior denial and of the type of evidence that was necessary to reopen the claim for service connection for a left knee disorder. The Veteran was advised that the previous denial was based on the facts that there was a well-documented history of a left knee injury with operative intervention prior to service, a diagnosis of osteochondritis dessicans prior to service, and a determination that his left knee condition was not aggravated during service. Kent, supra. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment records, VA treatment records, private medical records, Social Security Administration (SSA) records, and lay statements. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the information and evidence of record does not indicate that the Veteran's claimed right knee disorder may be associated with service. Additionally, with respect to the Veteran's secondary service connection claim, he is not currently in receipt of service connection for any disability. With respect to the Veteran's left knee, no examination is required because new and material evidence has not been presented or secured. 38 C.F.R. § 3.159(c)(4)(iii). As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis: Left Knee The Veteran was given notice of the RO's denial with his procedural and appellate rights at his address of record, but he did not appeal the April 1979 rating decision. There was no indication that the letter was returned or not received by the Veteran. The Veteran did not file a notice of disagreement with the April 1979 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 1979 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2012). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. Prior to the RO's April 1979 denial of the Veteran's claim for service connection for a left knee disorder, the Veteran had submitted a January 1979 statement to the effect that his left knee disorder had been aggravated in service. Also of record at the time of the RO's April 1979 denial were the Veteran's service treatment records which included documentation in December 1972 Medical Board Proceedings of a pre-service left knee disorder and surgery in 1968. The December 1972 Medical Board found that the Veteran's left knee disorder existed prior to entry to active duty, and was not aggravated by active duty. Diagnoses of left knee disorders, including traumatic osteochondritis, dessicans and arthrosis were also of record at the time of the RO's April 1979 denial. On the basis of all the evidence described above, in an April 1979 decision, the RO denied service connection for a left knee disorder, as the evidence showed that it existed prior to service and was not aggravated during service. The Veteran was notified of this decision and his rights. However, he did not timely appeal the decision to the Board, and therefore the April 1979 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In determining whether new and material evidence has been submitted, the Board must review all of the evidence submitted since the last final disallowance of the claim. As discussed above, the April 1979 rating decision is the last final denial. Id. Although the Veteran requested compensation for his left knee disorder in a May 2001 letter, he did not respond to the RO's October 2001 reply explaining the requirements of new and material evidence, and, as such, the RO did not pursue further development or issue a final decision in response. The RO received the Veteran's claim to reopen his claim in November 2008. In the contentions associated with his claim-including his December 2008 and May 2010 statements, and his November 2009 substantive appeal-the Veteran continued to assert that his left knee disorder was aggravated by service. Those contentions are not new because they are duplicative, cumulative, and redundant of his January 1974 statement that his left knee disorder was aggravated in service. Indeed, the Veteran's reports of left knee pain following physical training in service are not new because such was documented in a September 1972 service treatment record which was before the RO at the time of the April 1979 rating decision. Since the April 1979 rating decision, VA has also obtained the Veteran's VA and private treatment records, including multiple diagnoses of a left knee disorder. The Board finds that although these records are new, they are not material because they do not relate to an unestablished fact necessary to substantiate the claim. Specifically, these records reflect that the Veteran has a left knee disorder-a fact which the RO previously acknowledged in the April 1979 rating decision. Additionally, they are not relevant to the salient issue of whether the Veteran's pre-existing left knee injury was aggravated during service. The Board further finds that the evidence currently of record, when considered with the evidence of record at the time of the RO's April 1979 denial of the Veteran's claim, would not trigger the Secretary's duty to assist by providing a medical opinion. Shade, 24 Vet. App. 110 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, as the RO found in its April 1979 decision, there was a well-documented history of a left knee injury with operative intervention prior to service, a diagnosis of osteochondritis dessicans prior to service, and a contemporaneous determination by the Medical Board that the Veteran's left knee condition existed prior to service and was not aggravated during service. The Board finds that the Veteran has not submitted any new and material evidence as to any of the elements necessary to substantiate his claim for service connection for a left knee disorder, as nothing he submitted tends to show that his preexisting left knee disability was aggravated during service. Consequently, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim. Moreover, the evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for a left knee disorder. Analysis: Right Knee Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served on active duty for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested arthritis of the right knee to a degree of 10 percent within one year from the date of termination of service. The Veteran contends in his December 2008 statement that favoring his left knee over the years has caused problems in his right knee. However, because the Veteran is not in receipt of service connection for his left knee disorder, it follows that his right knee disorder cannot warrant service connection as secondary thereto. 38 C.F.R. § 3.310. However, the Board must also consider the possibility of service connection on a direct basis. Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered). In this case, the Veteran's service treatment records include a September 8, 1972 finding documenting a complaint of pain in the right knee; he further told the treating clinician that he had "bone rot" as a child, and has had surgery for the disorder. In light of the subsequent service treatment record entries dated September 12th, 15th, and 19th, 1972 showing symptoms of and treatment for a left knee disorder, the discharge from service due to a left knee disorder, and the absence of further discussion of a right knee disorder, it is clear that the September 8 entry documenting right knee complaints was in error, and that the clinician intended to document left knee complaints and history. This finding is consistent with the remaining evidence of record showing additional left knee complaints in September 1972 and a finding of a pre-existing left knee disorder which led to the Veteran's discharge from military service. There are no other references to right knee complaints or diagnoses in the Veteran's service treatment records. Because the Board finds that the September 8, 1972 clinician's entry was in error and the reference was intended to be to left knee complaints, and because there is no evidence of any other right knee complaints in service and no indication that the Veteran has contended his current right knee disability is related to any event, injury or disease in service (he only contends the right knee has now developed disability as a result of the left knee condition) the Board finds there is no evidence of an in-service incurrence of a right knee injury or disease. Without an in-service event, injury, or disease related to the right knee, entitlement to service connection cannot be established. The preponderance of the evidence is against a finding that the Veteran's current right knee disorder is related to service. Accordingly, service connection for a right knee disorder is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for postoperative residuals of an arthrotomy of the left knee with traumatic osteochondritis, dessicans, and arthrosis, the appeal is denied. Service connection for degenerative changes of the right knee is denied. ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs