Citation Nr: 1336258 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-26 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for a right knee disorder has been received. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant was a member of the United States Army Reserve from January 1994 to January 2000; she had an initial period of active duty for training (ACDUTRA) from August 1 to December 15, 1994. The appellant re-entered the Army Reserve in January 2002. She was called to active duty from December 2003 to February 2005, and from June 2007 to October 2008; she served a tour in Iraq during each period of active duty and was awarded the Combat Action Badge (CAB). The appellant has also had numerous unverified periods of ACDUTRA, as well as numerous unverified periods of inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2011, a Board videoconference hearing was conducted before the undersigned. A transcript of that hearing has been associated with the claims file. In connection with that hearing, the appellant submitted evidence directly to the Board. This evidence consisted of copies of emails dated in 2005, and a letter from a fellow soldier dated in September 2011. The appellant also submitted a written waiver of RO consideration of the additional evidence. See 38 C.F.R. §§ 19.37, 20.1304. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the case is ready for appellate review. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims files. The Board notes that the appellant's claim for service connection for a right knee disorder was originally denied in a June 2006 rating decision; the appellant was notified of the denial that same month but she did not appeal the denial. That denial was confirmed and continued in a rating decision issued in October 2006. The appellant was notified of the continued denial in October 2006, but she did not appeal the denial. The basis of the denial was that, while the appellant's service medical records revealed treatment for the right knee, the treated right knee condition was acute and transitory and did not represent a chronic disability. The October 2006 rating decision represents the last final action on the merits of the right knee disorder service connection claim. See Glynn v. Brown, 6 Vet. App. 523 (1994). The appellant thereafter submitted a claim to reopen the matter in May 2009. As reflected in the January 2010 rating decision and the May 2010 Statement of the Case (SOC), the RO indicated that it had reopened the right knee disorder claim and engaged in a de novo review of that issue. However, before reaching the merits of the appellant's claim for service connection for a right knee disorder, the Board must first rule on the matter of the reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for that claim to be reopened. See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The new and material evidence issue on appeal is therefore as listed on the first page of the present decision. The October 2006 rating decision represents the last final decision on any basis as to the issue of whether the appellant is entitled to service connection for a right knee disorder. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board must consider whether any of the evidence submitted since the October 2006 rating decision constitutes new and material evidence. The Board also notes that the appellant's claim of entitlement to service connection for a psychiatric disorder was granted in a rating decision issued in October 2009; an initial noncompensable evaluation was assigned for that disability, effective from October 2008. The appellant submitted a notice of disagreement (NOD) as to the initial noncompensable rating and, after a statement of the case (SOC) was issued, perfected her appeal with the submission of a substantive appeal in June 2010. While the case was in appellate status, the initial disability rating was increased to 30 percent effective from October 2008. In September 2011, the appellant submitted a VA Form 21-4138 in which she stated that she was withdrawing her appeal as to the increased rating issue for the psychiatric disability. See 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). Therefore this issue is no longer on appeal and it is not listed on the title page. FINDINGS OF FACT 1. The RO denied service connection for a right knee disorder in a final decision issued in October 2006. 2. The evidence received since the final unfavorable rating decision of October 2006, when considered with previous evidence, does relate to an unestablished fact necessary to substantiate the appellant's claim and, when considered together with the previous evidence of record, does raise a reasonable possibility of substantiating the right knee disorder service connection claim. 3. The aggregate evidence of record is in relative equipoise as to whether the appellant has a right knee disorder that is related her active military service. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied the appellant's claim for service connection for a right knee disorder is a final decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Additional evidence submitted subsequent to the October 2006 rating decision that denied the appellant's claim for service connection for a right knee disorder is new and material and does serve to reopen the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. Giving the benefit of the doubt to the Veteran, a right knee disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.1(m), 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim to reopen a previously denied claim, VA is required to "look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Board is granting the appellant's attempt to reopen the claim for service connection for a right knee disorder; the Board is granting in full the benefit (reopening of the claim) sought on appeal. In addition, the issue of entitlement to service connection for a right knee disorder is being granted. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist in relation to the reopening and granting of the right knee disorder service connection claim, such error was harmless and will not be further discussed. B. Claim to Reopen Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. New and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b). Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). The appellant's claim of entitlement to service connection for a right knee disorder was initially denied by an October 2006 rating decision which became final. 38 C.F.R. § 20.1103. This is so because the Veteran did not appeal the rating decision within the time period allowed and because she did not submit any additional evidence or statements concerning her right knee claim within the one-year appeal period either. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The October 2006 rating decision is also the last time the appellant's right knee claim was finally disallowed on any basis; that rating decision is final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Therefore, the appellant's claim may be reopened only if new and material evidence has been secured or presented since the October 2006 rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The appellant's claim for service connection for a right knee disorder was denied in essence because a chronic knee disorder was not shown to be related to her military service; any new and material evidence must relate to this. The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence considered by the RO in making its October 2006 decision included the appellant's service medical treatment records dated between January 1994 and January 2006; her January 2006 application for benefits; and the report from her June 2006 VA medical examination. The service medical records reflected treatment for a right knee contusion in January 2006; that condition was considered to be resolving. In January 2006, the appellant was placed on a permanent profile for right knee pain due to patellofemoral pain syndrome. The report of the June 2006 VA medical examination indicates that the examiner did not find any right knee pathology. The evidence added to the record subsequent to the issuance of the October 2006 rating decision includes written statements from the appellant; the appellant's September 2011 videoconference hearing testimony; a written statement from a fellow soldier dated in September 2011; copies of emails sent to and from an Army superior dated in 2005; the reports from VA examinations conducted in August 2009, and November 2009; additional service medical records dated between 2005 and 2009; and a Line of Duty (LOD) determination approved in August 2008. The appellant has stated that she experienced a right knee injury while she was in Iraq in 2004. She has further stated that she has continued to experience right knee pain since that time. The appellant has also submitted copies of emails dated in 2005 that indicate she was seeking a LOD determination for an unspecified injury. A July 2008 service treatment record indicates that the appellant reported being diagnosed with runner's knee after demobilization in 2005, and that she was given a profile for the right knee in 2006. The LOD determination that was approved in August 2008 indicates that the appellant incurred an injury to the right knee in Iraq in 2004 that resulted in patellofemoral syndrome. The November 2009 VA medical examination yielded a diagnosis of patellofemoral pain syndrome. The Board notes that the appellant is competent to report that she experienced right knee pain during service, as well as the same sort of right knee pain since service. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). As previously noted, the credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). In addition, the appellant has undergone clinical evaluations which confirm the diagnosis of patellofemoral pain syndrome in the right knee and there is a LOD determination, based on a July 2008 medical assessment, indicating that the onset of the appellant's current right knee pathology was during her active military service in Iraq in 2004. As stated earlier, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade, 24 Vet. App. at 117. In light of the fact that the appellant has a current diagnosis of right knee pathology that has been related to service by a medical opinion, and in light of the fact that she is competent to provide information about the onset and continuity of her right knee symptomatology, the evidence of record added since the October 2006 rating decision tends to show that the appellant's right knee pathology began during her active military service in 2004. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, supra, at 1336. The Board therefore finds that the evidence submitted subsequent to the October 2006 rating decision provides relevant information as to the question of whether the appellant incurred a right knee disorder during her active military service. The Board finds that the evidence cited above constitutes new and material evidence sufficient to reopen the claim for service connection for a right knee disorder. With the claim having been reopened, the service connection claim is addressed in the section which follows C. Service Connection 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). 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 may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may 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, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the Veteran's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). Certain listed diseases, including arthritis, will be considered to have been incurred in service if manifest to a degree of 10 percent or more within the presumptive period following the date of separation from service even though there is no evidence of such disease during service. 38 C.F.R. § 3.307. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can also be competent and sufficient to establish a diagnosis and nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Review of the appellant's service medical records reveals treatment for both left and right knee complaints. Most of the treatment records reflect treatment for the left knee. The lay statements of record, as reflected in the appellant's testimony and written statements from her and a fellow soldier, indicate confusion about which incident happened to which knee. For example, the September 2004 twisting incident has been described as occurring to the left knee in some accounts and as occurring to the right knee in other accounts. Review of the medical evidence of record yields conflicting opinions about the relationship of the appellant's right knee pathology to service. The November 2009 VA medical examination report indicates that it is less likely than not that the appellant's current right knee complaints were related to service and referenced the 2004 service medical report that a right knee contusion was resolving. However, a military physician has submitted a medical opinion to the contrary and that doctor linked the appellant's current right knee pathology to an in-service injury in Iraq in 2004, with resultant patellofemoral syndrome. This opinion provided the basis for the August 2008 LOD determination. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "In line of duty" means any injury incurred or aggravated during a period of active military service, unless such injury was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was the result of the veteran's abuse of alcohol or drugs. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301. There is no evidence of record to indicate that the appellant's right knee injury was due to willful misconduct or abuse of alcohol or drugs. The Board finds that the August 2008 line of duty determination that the Veteran's right knee patellofemoral syndrome was incurred in the line of duty during her 2004 active duty service is binding on VA as there is no reason to find that it is patently inconsistent with the requirements of the laws administered by VA. In addition, the service medical records contain a physical profile for the appellant dated January 31, 2006. The appellant was given a permanent profile for right knee pain due to patellofemoral pain syndrome (PFPS) at that time. Thus, there is clinical evidence that tends to show that the appellant had chronic right knee pathology within one year of her service separation in February 2005. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 51. In this regard, it is the policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. In this case, further inquiry could certainly be undertaken with a view towards development of the claim. However, as noted above, the reasonable-doubt rule operates in favor of the claimant when the positive and negative evidence is in approximate balance. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Here, the Board is of the opinion that this point has been attained. Therefore, based on the totality of the evidence of record, the Board finds that evidence for and against the appellant's service connection claim is at least in approximate balance on the question of whether the currently diagnosed right knee pathology had its onset during her active military service. In other words, the Board finds that full consideration of the material evidence of record presents a reasonable doubt that the Veteran's diagnosed right knee pathology is causally related to her active service. The Board will resolve that doubt in the Veteran's favor and grant service connection for a right knee disorder. ORDER The claim for service connection for a right knee disorder is reopened, and service connection for the appellant's right knee disorder is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs