Citation Nr: 1328000 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-31 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for arthritis of the left knee. 2. Entitlement to service connection for arthritis of the left knee, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, his wife, and his Representative ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1961 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2013, the Veteran appeared before the undersigned Veteran's Law Judge via videoconference and gave testimony in support of his claim. A complete transcript is of record. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. Please note 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. In a March 2002 rating decision, the RO denied entitlement to service connection for arthritis of the left knee; the decision became final in March 2003. 2. Evidence received since the March 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for arthritis of the left knee, and raises a reasonable possibility of substantiating the claim. 3. The evidence reflects that the Veteran has a current diagnosis of osteoarthritis of the left knee and that it is at least as likely as not that his currently diagnosed disease had its onset in service or, in the alternative, that it is etiologically related to his service-connected right knee disability. CONCLUSIONS OF LAW 1. The March 2002 rating decision is final; new and material evidence has been received and the claim seeking service connection for arthritis of the left knee is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Resolving all doubt in the Veteran's favor, service connection for arthritis of the left knee is warranted. 38 U.S.C.A. § 1110 (West 2002), 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The Board finds that VA compliance is sufficient to permit review of the petition to reopen for entitlement to service connection for arthritis of the left knee. As the determination below represents a grant of the petition to reopen and a grant of the underlying claim for service connection, a detailed discussion of VA's duty is not necessary. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 ; Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and Material Evidence Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). In 2010, since the final March 2002 decision, the Veteran submitted a private treatment record indicating he is receiving treatment for osteoarthritis in his left knee and underwent a left knee replacement. The medical provider opined that it is at likely as not that the left knee condition was caused and accelerated by the Veteran's service-connected right knee disability. This statement is neither cumulative nor redundant of the evidence of record in March 2002, and it raises a reasonable possibility of substantiating the claim by addressing an alternate theory of entitlement to service connection and addressing a causal relationship between the Veteran's service-connected right knee disability and his non-service connected left knee disability. Accordingly, the Board determines that there is new and material evidence sufficient to reopen the Veteran's service connection claim. Therefore, the claim to reopen is granted. III. Service Connection for Arthritis of the Left Knee Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) Where a chronic disease under section 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331, 1336 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "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. 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. Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 7 1 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). It is uncontroverted that the Veteran has a diagnosis of osteoarthritis of the left knee and was granted service connection for a right knee disability, specifically degenerative joint disease, in March 1985. See December 2012 VA Examination and April 1985 rating decision. There are no service treatment records related to a left knee disability and the Veteran did not seek treatment for a disability in the left knee until 1999, 14 years after his retirement from the military. In terms of his symptoms, at the June 2013 hearing before the Board, the Veteran stated that began wearing a brace on his right knee in 1983 and at that time, his primary problem was his right knee, however, intermittently his left knee "would flare up also." He stated that after service he began limping due to his right knee condition and had to quit playing basketball and handball because of issues in both knees. He stated that prior to his right knee replacement in 2007 he would periodically limp so badly that he "couldn't walk more than a couple hundred feet in some cases." He stated that he had injections in his left knee beginning in 2003 or 2004 that helped with his pain prior to a left knee replacement in 2010. The Veteran is competent to testify as to matters he has personally experienced. See 38 C.F.R. § 3.159(a)(2). As noted, the Veteran has a current diagnosis and thus satisfies the first required element for direct and secondary service connection. As to whether the Veteran's left knee disability was incurred in service, there is sparse evidence in the record. Although arthritis is a disease encompassed by 38 C.F.R. § 303(b), no manifestations were shown in service, no diagnosis was made during service, and there was no finding of chronicity during service. Therefore, a medical nexus must be shown between the currently diagnosed disease and service; continuity of symptomatology is not an available argument. In the absence of a direct nexus, in order for the Veteran's service connection claim to succeed, he must show that his left knee arthritis was at least as likely caused or aggravated by his right-knee disability as opposed to some other factor or factors. Here, there are three nexus opinions of record related to the Veteran's left knee condition provided by competent practitioners: (1) a July 2010 opinion from Dr. A.M., which is favorable to the Veteran's claim; (2) an opinion from the December 2011 VA examiner, which is against the Veteran's claim, , and (3) a June 2013 opinion from Dr. P.K., provided following the Veteran's hearing before the Board, which is also favorable to his claim. The Board will discuss these nexus opinions in turn. Dr. A. M. at the University of Texas Health Science Center performed the Veteran's right knee replacement in 2007 and left knee replacement in 2010. She submitted a June 2010 statement opining that it is "as likely as not that the left knee degeneration was caused and accelerated by the altered gait and posture from the right knee disease and deformity," however, she did not provide any further explanation for her statement. At the Veteran's December 2011 VA examination, the examiner concluded that Dr. A.M was "not in a position to comment" on the length or severity of any alteration of gait because she was not the Veteran's treating physician prior to his knee replacements. The Board finds this a weak rationale. The evidence reflects that by the time the Veteran saw Dr. A.M. he had severe problems in both knees which he related to her and she considered such evidence in determining that the Veteran needed the knee replacements. The VA examiner did not consider Dr. A.M.'s theory of altered gait, but rather concluded that medical literature "does not indicate that the problems in one joint can be related to problems in another joint in the absence of a generalized inflammatory condition." The Board finds the VA examination inadequate as it does not provide sufficient consideration of the Veteran's theory of secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). However, as instructed by the Board at the hearing, the Veteran subsequently provided an opinion adequate to allow the Board to grant his claim rather than remand to the RO for further development. In his 2013 opinion, Dr. P.K. opined that the Veteran injured both of his knees in service and the right knee was worse than the left. He related that in the early 1990s he treated both the Veteran's knees with anti-inflammatories and injections. The doctor addressed the question of whether the severe arthritis in the right knee would affect the left knee. He found that gait patterns and activities that favor the right knee would affect the left knee and based on that conclusion opined that "to some degree, arthritic changes of the left knee are a result of the right knee arthritic changes." He emphasized his belief that the degenerative changes to the left knee began prior to the Veteran's retirement from service. This opinion is adequate as it addresses all the evidence and provides an opinion as to each possible theory of entitlement to service connection. Resolving all doubt in the Veteran's favor, the opinion from Dr. P.K. provides the necessary medical nexus needed to grant service connection. Not only does Dr. P.K. opine that it is at least as likely as not that the Veteran's left knee disability began during service, he also concluded that the Veteran's left knee arthritis is as likely the result of or associated with his service-connected right knee disability as it is the result of some other cause or factor. The Board concludes that evidence for and against the claim for service connection for arthritis of the left knee is at least in approximate balance. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran as the law requires and grant service connection for arthritis of the left knee. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER New and material evidence having been received, the previously denied claim for service connection for arthritis of the left knee is reopened. Service connection for arthritis of the left knee is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs