Citation Nr: 1343458	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  13-03 349	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability, and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	South Dakota Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1973 until May 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.

The RO apparently reopened and denied a claim for service connection for a right knee disorder in September 2010.  Within one year of that decision, in September 2011 the Veteran requested reconsideration of the claim and submitted new and material evidence, consisting of private treatment records from Thomas Harbart, M.D.  See 38 C.F.R. § 3.156(b).  The RO again denied the claim in a September 2011 rating decision and the Veteran perfected an appeal.

The Board notes that the claim for service connection for a right knee disorder was originally denied in a November 1997 RO rating decision.  The Veteran did not appeal, and that decision became final.  38 U.S.C.A. § 7015.  The RO apparently found that new and material evidence had been submitted to reopen that claim and denied it on the merits in September 2010 and September 2011.  The Board agrees that new and material evidence has been submitted since the final November 1997 rating decision and will also address the underlying claim for service connection on the merits.  38 C.F.R. § 3.156. 

The Veteran testified at a March 2013 formal hearing, held at the RO, chaired by a Decision Review Officer (DRO hearing).  A transcript of the hearing has been associated with the Veteran's VA claims folder.

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.




FINDING OF FACT

Affording the Veteran the benefit of the doubt, the probative evidence of record demonstrates that a right knee disability was incurred during active service.


CONCLUSION OF LAW

The criteria for service connection for a right knee disability have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009).

To that end, the Veteran has claimed that in August 1979, a fuel tank fell on him, resulting in a right knee injury.  The Veteran's service treatment records (STRs) confirm the incident and subsequent visits to medical for right knee pain.  While the October 2012 VA examiner opined that the Veteran's current right knee disability (mild degenerative changes of the right knee with mild narrowing of the right medial compartment) is unrelated to service, the Veteran has reported, as he is competent to do, a continuity of symptomatology of right knee pain since service.  See Charles v. Principi, 16 Vet. App. 370 (2002).  In addition, the Veteran's wife testified that the Veteran had right knee pain since service, and that his knee "locks up" and "gives way."  The Board finds the Veteran and his wife credible.  This report of a continuity of symptomatology suggests a link between his current right knee disability and service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).  Also, a November 2010 note from a private treatment provider, Thomas Harbart, M.D., indicates the possibility that the Veteran injured his posterior horn medial meniscus during the incident in service, leading to the current degeneration.

Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Because a state of relative equipoise has been reached in this case, the benefit of the doubt 
rule will therefore be applied and service connection for a right knee disability will be granted.


ORDER

Service connection for a right knee disability is granted.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs