Citation Nr: 1332606 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-06 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Valerie D. Metrakos, Accredited Attorney ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active service from April 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Regional Office (RO) in Nashville, Tennessee that determined that the Veteran failed to provide new and material evidence to reopen the previously denied claim for service connection for right knee disability. A review of the Veteran's Virtual VA file indicates that that there is no evidence outstanding relevant to this appeal. FINDINGS OF FACT 1. In an October 2008 decision, the RO denied the Veteran's claim for service connection for a right knee disability on the basis that the injury preexisted service; and, although he submitted a notice of disagreement, the Veteran failed to timely perfect his appeal after being provided a statement of the case in June 2009. 2. The evidence received since the RO's October 2008 decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The Veteran's service entrance examination is missing; and, the evidence does not clearly and unmistakably demonstrate that the Veteran's right knee disability preexisted military service. 4. The medical evidence is in equipoise as to whether the Veteran's current right knee disability is related to active service. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the RO's October 2008 decision; thus, the claim for service connection for right knee disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012), 38 C.F.R. § 3.156 (2013). 3. The Veteran's right knee disability is related to an injury incurred in service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence Claim The RO issued a decision in October 2008 that initially considered and denied service connection for right knee disability. The RO determined that the Veteran had a right knee disability that preexisted his active service, and that the evidence failed to establish that the preexisting right knee disorder was aggravated by his active service. Such was based on a review of the Veteran's service treatment records (STRs) and post-service medical records and reports. The RO notified the Veteran of that decision in November 2008 and apprised him of his procedural and appellate rights. The Veteran filed a notice of disagreement later that month. He was provided a statement of the case in June 2009. A substantive appeal was not submitted in a timely manner. 38 C.F.R. § 20.302(b). As such, the October 2008 RO decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Generally, a claim that has been denied in an unappealed rating or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. See Id., at 117. Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence added to the record since the October 2008 rating decision consists of private treatment records, a private medical opinion, VA treatment records and a new VA examination. As the evidence had not previously been submitted to agency decision-makers and is not cumulative or redundant of other evidence of record, the evidence is new under 38 C.F.R. § 3.156(a). Specifically an opinion from a private physician who treated the Veteran indicates a possible causal connection between the right knee disability and service, which was not shown at the time of the October 2008 decision. The physician's opined that the Veteran tore his anterior cruciate ligament in service and that this incident ultimately led to the Veteran's current right knee disability. Therefore, the new evidence relates to an unestablished fact necessary to substantiate the claim, that of possible causal connection to service. As such, it is found to be material. Accordingly, the Veteran's request to reopen the claim for service connection for a right knee disability is granted. Having reopened the Veteran's claim, the next question is whether the Board is permitted to conduct a de novo review at this time. See Bernard v. Brown, 4 Vet. App. 384 (1994) (in assessing claims to reopen, the Board must determine whether the veteran has been given adequate notice of the need to submit evidence or argument on that question, and an opportunity to address the question at a hearing, and, if not, whether the veteran is prejudiced thereby). See also Kent v. Nicholson, 20 Vet. App. 1 (2006) (VA must give the appellant notice of precisely what evidence is necessary to reopen the claim, depending upon the basis of the previous denial. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim). The Board finds a de novo review appropriate; enough evidence is contained in the case file to render a decision favorable to the Veteran. Service Connection The Veteran contends that his current right knee disability is related to an injury the Veteran incurred during service. Specifically, the Veteran states that he suffered an injury during a run, dodge and jump obstacle course in 1967. As will be explained below, evidence of record raises a question as to whether the Veteran had a right knee disability that preexisted his entrance into active service. Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Before the presumption of soundness can be applied, there must be evidence that a disability or injury that was not noted on entrance into service manifested or was incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, the presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. Id. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. See 38 U.S.C.A. § 1111 (West 2002); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby, 1 Vet. App. at 227)). STRs document that the Veteran was seen on multiple occasions for complaints of right knee pain following a May 1967 incident wherein he injured his knee in a run, jump, and dodge exercise where his knee gave way. Reference was made to an "old injury". The impression of the knee was internal damage due to effusion and swelling. The Veteran was subsequently admitted to Martin Army Hospital in Fort Benning for 16 days. At Fort Benning, the treating physician noted in a June 1967 record that the Veteran had a noncontributory past medical history, that the right knee revealed tenderness over the medial joint line posteriorly and pain on internal rotation of the tibia. Further, the physician stated it "was considered that he might have an internal derangement of the right knee but surgery was not indicated at the time." The Veteran's commanding officer issued a modified duty status document in June 1967 placing the Veteran on limited duty and instructed him to not participate in "running, jumping, prolonged standing or marching" and that he not participate in "strenuous activity." A September 1967 treatment record from Fort Lewis describes an injury where the Veteran twisted his right knee causing it to become swollen. The Veteran was referred to a medical officer and his condition was noted as improving a week later. The Board also recognizes in the Veteran's December 1968 report of medical history, the Veteran checked yes to have a trick knee and reported that he incurred a knee injury at Fort Benning. Since there is evidence that the Veteran developed knee problems in service, the Board turns to the issue of whether the Veteran was presumed sound at entry into that period of service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). The record does not contain an entrance examination. However, it appears that there may be service records that are unavailable. Reference is made to the June 1967 narrative summary that indicates that the Veteran was held for over two weeks due to his May 1967 injury. There are no records pertaining to that hospitalization. The record also includes a Report of Medical History, which was taken in conjunction with his pre-induction examination. Since it is consistent with his active duty service that he would have undergone an entrance examination, especially in light of his report of pre-service injury and the history that was taken, the Board concludes that the entrance examination for the Veteran's period of service is missing from the record. Where an entrance examination is lost or missing, the presumption of soundness attaches. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). In determining whether the presumption of soundness has been rebutted, the Board must next consider whether there is clear and unmistakable evidence that a right knee disability preexisted the Veteran's service. The Board concludes that the record does not contain clear and unmistakable evidence that a right knee disorder preexisted his active service. The record shows that prior to induction, the Veteran's private physician submitted a letter regarding a previous knee injury. The physician noted that there was a knee strain but the condition resolved without any permanent disability. The letter was stamped as having been reviewed and considered in determining the Veteran's physical profile. Subsequently, the Veteran reported a trick knee on his report of medical history in October 1966, yet the examiner noted that the "old knee injury" was not considered disabling. The record also includes statements from the Veteran and his former wife. Both individuals assert that the Veteran did not have any problems with his right knee before he entered service. His former wife specifically noted that he did not walk with a limp. The Veteran and his ex-wife are deemed competent to testify regarding observable symptoms, such as whether the Veteran experienced knee problems and other observable symptoms prior to his service. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). These statements are also found to be credible, as they are consistent with each other and have been the same throughout the appeal and are not contradicted by the contemporaneous record. Therefore, since it is at least debatable whether the Veteran's right knee disability preexisted entrance into service, the record does not contain clear and unmistakable evidence that a right knee disability preexisted service. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (stating that clear and unmistakable evidence is evidence that "'cannot be misinterpreted and misunderstood, i.e., it is undebatable'" (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999))). The government cannot rebut the presumption of soundness and the claim is one of service connection, without consideration of a preexisting condition. See Quirin, 22 Vet. App. at 396 . In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The evidence of record clearly shows that the Veteran has a current disability. A June 2012 VA examination report discusses the Veteran's history of knee problems including a diagnosis of capsular strain with synovitis in the right knee and a meniscal tear. The Veteran also has numerous private medical records for the right knee spanning 2000 to 2009 that document falls related to his knee giving way. Additionally, the Veteran received a total knee replacement in 2009 due to severe degenerative joint disease. There is also sufficient evidence showing that the Veteran injured his right knee in service, which was discussed in detail above. Elements (1) and (2) of the Holton analysis have therefore been established. As to element (3) of the Holton analysis, the Board notes that there is positive and negative evidence with respect to the etiology of the Veteran's right knee disability. The evidentiary support for these opinions comes by way of a January 2012 private physician's letter and a June 2012 VA orthopaedic compensation and pension examination report. The January 2012 letter was submitted by the Veteran's private physician, Dr. J, a board certified orthopedic surgeon with sub-specialty interest in the knee. Dr. J stated that he treated and supervised treatment of the Veteran's knee from 2005 to 2010 including the Veteran's knee replacement in 2009. Reference was made to the Veteran's numerous private treatments including a fall incident in 2000. He listed the Veteran's current diagnosis as right knee replacement done for severe degenerative arthritis. Dr. J opined that it was highly probable that the Veteran "sustained an anterior cruciate ligament tear in 1967" providing an etiology relating the current knee disability to the Veteran's time in service. Dr. J commented that the Veteran: had persistent giving way episodes and chronic instability of the knee related to his anterior cruciate ligament injury; and it is highly probably, almost certain, that the patient's long-term problems with his knee began with his original injury. It is now widely accepted that the natural history of an ACL deficient knee with recurrent episodes of instability is eventual degenerative arthritis that can often result in knee replacement. The Veteran was afforded a VA orthopedic report in June 2012. The VA examiner reviewed the Veteran's claims file and medical history related to his knee. The examiner discussed the Veteran's in-service injuries. In particular, he discussed the normal ligamentous exams at entry and despite the Veteran's injuries, the knee appeared to resolve. The examiner also discussed post service injuries including a fall and numerous private treatment records from 2000 to 2010. He also noted that the Veteran's "choice of heavy manual labor after service would certainly aggravate any pre-existing knee arthritis." On considering the etiology of the Veteran's current knee disability, the examiner stated: [w]hat is not clear from the medical evidence (and I don't think we will ever know) is when the patient actually injured his ACL. Ligamentous exam were normal and before his duty in service. Therefore there is no way for me to say without merely speculating whether the veteran's eventual knee OA was the result of his service injuries. Further the examiner notes: Unfortunately the medical evidence does not give us a timeline as to when he may have torn his ACL. If it was torn in his initial football injury; then repetitive episodes of instability in service may have aggravated and accelerated his progression of both knee arthritis; but we do not know that he didn't injure his ACL after leaving service. The Board acknowledges the VA examiner's opinion is such that a nexus cannot be rendered without resorting to mere speculation. In accordance with established law, the examiner set forth adequate explanations as to why only a speculative opinion could be given and based his conclusion on a thorough review of the claims file. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). In this case, the Board finds the medical opinions to be in equipoise for the foregoing reasons. First, the probative value of medical evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion that an examiner reaches. Guerrieri, 4 Vet. App. 467, 470-71. The Board also observes the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri, 4 Vet. App. 467, 471-73. However, in this case the private physician, Dr. J, has had greater opportunity to examine and treat the Veteran for his right knee disability and has done so for a period of five years. While the VA examiner has provided a thorough orthopedic report, the record does not demonstrate that he had the opportunity to examine or interview the Veteran. In this regard, the private opinion is more probative as to opportunity to personally examine the Veteran. Second, greater weight may be placed on one physician over another depending on factors such as the reasoning employed by the physician and whether or not (and the extent to which) he or she reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning and whether the examiner providing the report or opinion is fully cognizant of the Veteran's medical history). The VA examiner had access to the service treatment records and, based on the text of his opinion, had access to private records as well. The private physician stated that he had reviewed the Veteran's VA claims file which included the service medical records. Accordingly, the degree to which the medical providers had access to clinical records is in equipoise. Finally, other factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case there are contradictory opinions, one being that an etiology was not possible without speculation another that offered a definitive etiology. The VA examiner provided an adequate rationale as to why he could offer only a speculative opinion on the Veteran's right knee disability and postulated several possible etiologies. The private physician rendered an opinion with a nexus linking the Veteran's current disability to service and provided an equally strong clinical rationale. The Board does have some trouble with the fact that Dr. J. provided a statement in August 2008 wherein he stated that the Veteran "originally injured his knee" in 2005 and made no reference to his active service. However, at the time that he authored the 2008 letter, he had not reviewed the Veteran's service treatment records. Consequently, the evidence in this regard is in equipoise. The Board has also considered the lay evidence submitted by the Veteran and by lay persons in support of the Veteran. For instance, in the Veteran's April 2010 Notice of Disagreement (NOD), he states that he never had trouble with his knee until he was hurt in basic training and that after this injury he had ongoing problems. Also attached to the NOD is the statement of the Veteran's ex-wife who states that while his knee was normal prior to service the Veteran had difficulty walking and squatting down post-service. The ex-wife also submitted another letter in August 2011 noting that the Veteran was normal before service and walked with a limp after service. While the lay persons cannot diagnose disorders or render medical opinions, the Veteran can certainly relay knee pain and ambulatory difficulties. Consequently, while the Veteran's statements may lack probative value for medical support, the Board finds his account of the knee injury symptomatology credible. In reviewing the aforementioned medical and lay evidence, the Board acknowledges that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the Veteran. 38 U.S.C.A. § 5107(b) (2012). The Board finds that the evidence discussed herein is equally positive and negative as to whether the Veteran's right knee disability is the result of his injuries in service. Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran and grant service connection for a right knee disability. ORDER The application to reopen the claim for service connection for a right knee disability is granted. Entitlement to service connection for a right knee disability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs