Citation Nr: 1331186 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-10 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee disability, claimed as minimal bilateral patellar knee spurring. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida in pertinent part, denying service connection for minimal bilateral patellar knee spurring. Presently, however, the Board observes that a June 2001 RO rating decision already denied service connection for chronic knee pain, bilateral. Hence, the proper characterization of this matter is as a petition to reopen a previously denied claim for service connection, rather than an original claim. The Board has done so accordingly, and further, finds no detrimental impact from considering the petition to reopen in the first instance inasmuch as the claim will be reopened and thereupon granted on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). For similar reasons, the Board will directly accept into the record additional evidence in the form of May 2010 lay witness statements from the Veteran and a fellow serviceman without a waiver of RO initial jurisdiction. FINDINGS OF FACT 1. Through a June 2001 rating decision, the RO denied the Veteran's original claim for service connection for chronic bilateral knee pain. He did not appeal. 2. Since the June 2001 rating decision, additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claim. 3. The competent evidence etiologically linking the Veteran's diagnosed bilateral knee disorder with his military service is at least evenly balanced with that preponderating against the claim. CONCLUSIONS OF LAW 1. The June 2001 RO rating decision which denied the claim for service connection for chronic bilateral knee pain became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 2. New and material evidence has been received to reopen the Veteran's previously denied claim for service connection for a bilateral knee disability. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for bilateral patellar knee spurring. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. The Board is reopening the claim for service connection for a bilateral knee disability, and further, granting the underlying claim on the merits. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The RO pursuant to a June 2000 rating decision issued the original denial of the Veteran's claim for service connection for chronic bilateral knee pain. The RO's decision observed that there were a few acute episodes of right and left knee pain during service. On VA Compensation and Pension examination of December 1999, the diagnosis had been "chronic knee pain, greater on the left than right, due to osteoarthritis, remotely related to parachute jumping during military service." An x-ray of the bilateral knees had shown no recent fractures, dislocations or joint effusion, and the impression was essentially a normal study. As such, the decisional rationale was that the Veteran did not have a qualifying post-service diagnosed disability of the bilateral knees. This decisional rationale was also consistent with existing VA case law. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Hence, the claim was denied. The RO then reconsidered the claim on a de novo (on the merits) basis pursuant to a June 2001 rating decision, under the provisions of the then recently enacted VCAA. The denial of the claim was continued on the same aforementioned grounds. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). The deficient element regarding the Veteran's original claim was that of a current disability. The very first and fundamental criterion to establish service connection is competent evidence of the present disability claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). In connection with the instant petition to reopen, numerous new sources of evidence have been received since the June 2001 prior RO rating decision, and amongst these is evidence which is sufficient to reopen the Veteran's claim. The report of a March 2009 VA Compensation and Pension examination for orthopedic evaluation indicates a diagnosis, in relevant part, of "minimal bilateral patellar spurring." The VA examiner then proceeded to offer an opinion on the etiology of the condition diagnosed, however, the Board is not concerned with that subject at this point, only with what is sufficient to reopen the claim. In this regard, there is now competent evidence of a current bilateral knee disability, not previously of record, and therefore new and material evidence to reopen the Veteran's claim. See generally, Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial). Accordingly, the Veteran's claim for service connection for a bilateral knee disability is reopened upon receipt of new and material evidence. See 38 C.F.R. § 3.156(a). The Board further finds that a favorable decision may be issued based upon the record as it stands. Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Generally, pertaining to direct service connection without application of the aforementioned presumption, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Reviewing this claim on a de novo basis, the STRs show through a June 1978 clinical record that the Veteran had hurt his knees in a parachute jump. He was instructed to avoid excessive physical activity for one month, and given a pain reliever. He was placed on a one month physical profile for right knee pain. The Veteran underwent an approximate one month hospitalization beginning in late-September 1980 following a fracture and dislocation of the left humerus, for which the injury underwent a closed reduction, manipulation, and placement in a cast, followed by physical therapy. Follow-up evaluation records disclosed no sequelae of this injury, and indicated that the injury was well-healed. As indicated, the Veteran previously underwent a December 1999 VA examination just following service discharge. He then reported left knee pain which started in 1979 when parachuting, that was diagnosed as "ligamentous injury," which had persisted with moderate intermittent pain and moderate weakness and fatiguing. The reported symptoms in the right knee were much less than those of the left knee, and were described as mild. The diagnosis was "chronic knee pain, greater on left than right, due to osteoarthritis, remotely related to parachute jumping during military service." The report of a September 2008 VA outpatient clinical evaluation indicates a physician's assessment of "patient with multiple areas of pain, shoulders, back, knees and ankles, which in my opinion are all compatible with injuries that occurred while serving in the military." On the March 2009 VA examination, the complete diagnosis was "minimal bilateral patellar spurring consistent with natural aging claimed as chronic knee pain; not caused by or related to 'ligamentous injury' of knees nor to skin abrasion to the left knee diagnosed while in military service." The additional opinion rationale was provided of "The radiologic study of [the] bilateral knees in 1999 at the time of separation from military service was normal. Therefore, radiologic findings in 2009 of minimal bilateral patellar spurring are not caused by or related to military service." When viewing the evidence in its entirety, the Board concludes that there is sufficient basis upon which to grant service connection. The fact that the Veteran has a current bilateral knee disability, as well as his potential precipitating injury from service based on the documented service history along with his competent report of continued trauma from innumerable parachute jumps are both readily apparent. What remains to be shown is whether there is a causal nexus between the present condition and military service, and it is concluded that this element is met. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The medical opinions addressing the issue of causal nexus both weigh for and against the claim, with the most favorable opinion evidence provided by the December 1999 VA examiner and September 2008 treating physician. Under such circumstances, with the evidence roughly balanced on the dispositive issue of what caused a bilateral knee disorder, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The criteria for service connection for bilateral patellar knee spurring are therefore met. ORDER New and material evidence having been received, the petition to reopen service connection for a bilateral knee disability is granted. Service connection for bilateral patellar knee spurring is also granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs