Citation Nr: 1328868 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-01 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left knee disorder, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1978 to January 1982. He also had subsequent reserve duty service, with numerous periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. Service connection for a left knee disorder claim was denied in a June 2006 rating decision and the Veteran did not perfect a timely appeal. 2. Evidence received since the final June 2006 rating decision is not cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder. 3. The weight of the evidence shows that the Veteran's left knee disorder is etiologically related to his active duty training. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied entitlement to service connection for a left knee disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A left knee disorder was incurred during active duty for training. 38 U.S.C.A. §§ 101(24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Given the favorable disposition of the request to reopen and the Board's decision to grant service connection for a left knee disorder, which herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. II. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without evidence of a current disability; in service incurrence or aggravation of a disease or injury; and a nexus between the claimed in service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. Service connection may also be granted for disability resulting from disease or injury incurred during active duty for training. See 38 U.S.C.A. §§ 101(24), 106. Active duty for training is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). In general, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the member's initial period of training. The presumptions of soundness and aggravation do not apply to periods of active duty for training or inactive duty for training. See Biggins v. Derwinski, 1 Vet. App. 474, 477 (1991). A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105 When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as 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). In certain cases, competent lay evidence may satisfy any of the required elements for service connection. "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve reasonable doubt in the claimant's favor. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis The Veteran claims that he has submitted new and material evidence since the RO's June 2006 rating decision became final and as such, his claim for service connection for a left knee disorder may be reopened. He contends that he injured his knee during a training exercise while on reserve duty in April 1999, specifically, while running in formation and using his left leg for cadence purposes. The Veteran first submitted a claim for service connection for a left knee disorder in January 2006. That claim was denied in a June 2006 rating decision. While the Veteran discussed this left knee claim in his July 2006 notice of disagreement, he did not perfect a timely appeal. Hence, the June 2006 rating decision denying service connection for a left knee disorder is final. 38 U.S.C.A. § 7105. In January 2010 the Veteran filed a claim to reopen his left knee disorder claim and has since submitted additional evidence to that end. Because the RO's June 2006 decision became final, the evidence submitted by the Veteran must be new and material in order to reopen his claim. The Veteran submitted a buddy statement, from R.B., in January 2010. R.B. reported serving with the appellant and being present at an April 1999 reserve physical fitness running exercise. R.B. stated that at this exercise he observed the Veteran limping, running very slowly, and complaining of severe left knee pain. The Veteran also submitted a February 2010 statement from his civilian supervisor, M.S., who stated that the appellant experienced limited mobility, without the use of a knee brace, since April 1999, while performing some of his job functions as an Aircraft Overhaul and Repair Supervisor. M.S. stated that the Veteran told him that he had to wear a knee brace ever since his April 1999 injury. In evaluating evidence to determine whether it is new and material, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As such, the credibility of the two lay statements must be presumed. Both statements are new in that they provide testimony from lay witnesses, not previously of record, which temporally link the Veteran's injury to his reserve duty. The statements are also material, in that the RO denied the Veteran's claim in June 2006 based upon a lack of evidence showing that the knee injured occurred in or was caused by service. Both statements tend to show that the Veteran's injury occurred during the April 1999 reserve training exercise. Further, the Veteran was afforded a VA Examination for his left knee disorder in July 2010. After review of the file and an examination of the Veteran, the examiner opined that it was as likely as not that the Veteran's left knee disorder was related to the Veteran's reserve duty injury. While the medical examiner discussed an injury date of 1998 in his opinion, he provided a medical opinion linking the Veteran's knee injury to his military reserve training exercises. This evidence was not previously of record and it relates to an unestablished fact necessary to substantiate the claim in providing a medical opinion linking the Veteran's knee disorder to his military reserve training; thus making the VA examination report new and material evidence. As the Veteran has submitted new and material evidence the Board will review whether service connection is warranted for this claim. The Veteran has claimed that he injured his left knee while running in ranks during his reserve duty training. The claims file reveals numerous evidentiary submissions by the Veteran as well as medical and personnel records, which the Board will consider and weigh in connection with this claim. First, to be eligible for service connection and VA benefits, the Veteran must establish that his knee disorder occurred during active duty service, that it is the result of a disease or injury sustained during a period of active duty for training, or that it is due to an injury sustained during inactive duty training. Review of the service treatment records show that there are no complaints of left knee disorders during active duty and the Veteran's knees were clinically evaluated as normal at a November 1981 separation examination. However, the Veteran had subsequent reserve service until his retirement from the reserve in 2005. During that time, the Veteran had numerous periods of active duty for training, which can be verified by review of his orders to report for active duty for training from 1988 through 2004, which are associated with the claims file. Significantly, these records indicate that the Veteran was on active duty for training status for 12 days in March and April 1999. Additionally, the Veteran has submitted a buddy statement from R.B. which also states that the Veteran was at reserve duty training in March and April 1999. As such, the Board finds that the Veteran was on active duty for training in April 1999 and is entitled to VA benefits for any injury or disability caused by such status. The Veteran has submitted proof of a current left knee disorder. For example, medical records from Drs. K.M. and D.H. show that the Veteran underwent a left knee arthroscopy, arthroscopic partial medial meniscectomy, and chondroplasty of the medial femoral condyle and loose body removal in April 2006. Subsequently, the July 2010 VA examiner noted that the Veteran had some limited range of motion, which was caused by pain. During that July 2010 examination, the Veteran also reported that his knee pain had improved since his 2006 surgery, but that he continued to experience pain, which limited his activities, including prolonged stooping, kneeling, and standing; performing normal chores around his home; exercising; or playing ball with his son. The Veteran also stated that he wears a neoprene sleeve as instructed by his physician. The Veteran is competent to report these symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds that these statements are credible as they are supported by the VA examiner's findings upon examination and are consistent throughout the record. As such, the Board finds that the evidence in the claims file has established proof of a current left knee disorder. Regarding whether there is a nexus between the Veteran's current left knee disorder and his active duty for training the Board finds that after review of all evidence of record, the weight of the evidence demonstrates that the appellant's current left knee disorder is related to an injury sustained while on active duty for training in April 1999. A brief overview of such evidence is helpful, especially as there are two dates of possible injury raised by the record (September-December 1998 and April 1999). In a December 1998 medical record from Dr. V.F., the Veteran reported pain behind his left knee which had occurred two to three months prior upon joining a walking program. He was diagnosed with a knee strain. In a medical record dated April 1999, the Veteran reported a five day history of left knee pain to Dr. D.J. The Veteran told Dr. D.J. that the pain was not an old injury and that it had not happened before. Dr. D.J. diagnosed the Veteran with "left knee pain possible tendinitis and overexertion injury." He noted that the Veteran reported running and exercise, but had denied any specific knee trauma. Medical records from Dr. D.H. show that the Veteran was evaluated for left knee pain in January 2006. At that time the Veteran reported injuring his left knee while running in ranks in 1998 while on active duty. He told his doctor that this pain had continued since that injury and was exasperated by certain activities. The Veteran's Annual Certificate of Physical Condition (Annual Certificate) dated June 1999 shows that the Veteran indicated he had aggravated a tendon in his left knee while running in the ranks during active duty for training. The Annual Certificate notes that this injury occurred in approximately April 1999 and that the issue had resolved. The Veteran filed a claim to reopen his claim for service connection for his left knee in January 2010. His notice of disagreement and VA Form 9 both refer to an injury in April 1999 while serving on active duty for training. As previously discussed, the Veteran also submitted lay statements in connection with his claim, which both noted that the Veteran's injury occurred in April 1999. The July 2010 VA examination report noted that the Veteran reported injury to his knee while running in formation in 1998, while leading the group and using his left leg for cadence purposes. The examiner noted that the Veteran also reported that his pain never significantly improved "although there is a note from his annual exam in 1999 confirming again this injury, but stating that the problem had resolved." After review of the claims file, interview with the Veteran, and examination the examiner found that it was as likely as not that the Veteran's left knee condition was due to the injury sustained in 1998 in the military. He went on to opine that given the constellation of the Veteran's symptoms, the appellant's report that he never truly improved, and the presence of an osteochondral lesion without any other injuries to the left knee, it appeared as likely as not that the Veteran suffered an injury to his left knee while using it for cadence purposes. The Board finds that the weight of the evidence demonstrates that the Veteran injured his left knee while on active duty for training. The Board finds that Dr. D.J.'s assessment of the Veteran in April 1999 was a competent, credible evaluation. He interviewed the Veteran and performed a physical examination and x-ray before diagnosing him. The Veteran's reserve duty orders associated with the claims file show that the appellant was on active duty for training for a period in March and April 1999. The timing of the injury diagnosed by Dr. D.J., as reflected in the medical record, places the Veteran on active duty for training status at the time of the injury. This timing is supported by the lay statements submitted by the Veteran, which note that his injury occurred in April 1999. The statement of M.S. states that the Veteran told M.S. that he has been wearing a brace at work on a daily basis since April 1999, so it is unclear whether M.S. independently observed the Veteran's limitations at work from this time period forward. However, the buddy statement submitted by R.B. states that R.B. observed the Veteran having difficulty with his knee during an April 1999 required, reserve duty run. The Board finds the statement by R.B. to be credible as R.B. observed the Veteran firsthand and his statements are corroborated by other evidence of record. The June 1999 Annual Certificate also supports that the Veteran was injured in April 1999 and appears to have been reviewed or discussed with the appellant by a medical officer. While this document supports the Veteran's injury on active duty for training, it does state that the injury had resolved. As above, the Board finds that there is sufficient evidence in the claims file documenting a continued and current knee disorder. Further, the Board notes that there may be an alternative motive for suggesting that the Veteran's knee disorder had resolved at that time. Finally, the June 2010 VA examination report is probative evidence in support of the Veteran's claim. The fact that the Veteran incorrectly reported the date of injury as 1998 to the examiner does not negate the examiner's credibility or opinions. First, review of the examination report shows that the VA examiner appears to have carried out an adequate examination by reviewing the claims file, interviewing the Veteran, and examining the appellant with all appropriate testing and considerations. Second, with specific regard to the 1998 injury date, the examiner specifically stated that "...a note from his annual exam in 1999 confirm[ed] again this injury..." Thus, while the Veteran initially misstated the date, it appears the examiner is referencing the April 1999 left knee injury, as listed in the June 1999 Annual Certificate, which is the injury occurring on active duty for training. Finally, the Veteran had stated that he injured his knee running in formation while using his left leg to mark cadence at this examination. In the examiner's rationale he related the Veteran's current knee disorder to his use of his left leg to mark cadence independently of this 1998 date. The Veteran has consistently claimed that he injured his knee while running in formation or rank. He has also testified that he has continued to struggle with pain and mobility since this injury. The Veteran is competent to offer testimony on the symptoms he experienced and what he was doing at the time he experienced them because this requires only firsthand knowledge as it is experienced through the senses. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Although the Veteran may have recalled his active duty for training injury as happening in 1998 on one or two occasions, the Board finds the Veteran's testimony to be credible. Medical records, including from Dr. D.J., the buddy statement from R.B., the Annual Certificate dated June 1999, and the Veteran's orders to report to active duty for training all support and act to corroborate his statements regarding his left knee injury. The weight of the evidence shows that the Veteran was injured during an April 1999 running exercise while he served on active duty for training. The Board will resolve all doubt in favor of the Veteran and as such, finds that service connection for his left knee disorder is warranted. ORDER New and material evidence has been received and the claim of entitlement to service connection for a left knee disorder is reopened. Entitlement to service connection for a left knee disorder is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs