Citation Nr: 1501535 Decision Date: 01/13/15 Archive Date: 01/20/15 DOCKET NO. 12-27 111 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for arthritis of the left knee. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for arthritis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1985 to June 1990 with subsequent service in the New Jersey Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Newark, New Jersey RO, which found that no new and material evidence had been submitted. In October 2014, a Travel Board hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is included in the record. At the hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; such evidence was received. FINDINGS OF FACT 1. An unappealed October 2007 rating decision denied the Veteran service connection for left knee osteoarthritis, based essentially on findings that no permanent residuals or chronic disability was shown at the time of discharge from active duty. 2. Evidence received since the October 2007 rating decision includes treatment records, a VA examination, and medical opinions regarding his left knee disability; relates to an unestablished fact necessary to substantiate the claim of service connection for left knee arthritis; and raises a reasonable possibility of substantiating the claim. 3. Arthritis of the left knee was not manifested in service or within one year after the Veteran's separation from service; and no diagnosed left knee disability is shown to be related to his service. 4. An unappealed October 2007 rating decision denied the Veteran service connection for right knee osteoarthritis, based essentially on findings that no chronic disability was incurred in or caused by active duty. 5. Evidence received since the October 2007 rating decision includes treatment records, a VA examination, and medical opinions regarding his right knee disability; relates to an unestablished fact necessary to substantiate the claim of service connection for right knee arthritis; and raises a reasonable possibility of substantiating the claim. 6. Arthritis of the right knee was not manifested in service or within one year after the Veteran's separation from service; and no diagnosed right knee disability is shown to be related to his service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for left knee arthritis may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 2. A chronic left knee disability was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 3. New and material evidence has been received, and the claim of service connection for right knee arthritis may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 4. A chronic right knee disability was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014), and Kent v. Nicholson, 20 Vet. App. 1 (2006), have been met. By correspondence dated in January 2009, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. The claims on appeal were most recently readjudicated by the AOJ in the October 2013 supplemental statement of the case. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in July 2012, with an addendum opinion submitted in May 2013, which the Board (cumulatively) finds to be adequate for reasons that will be discussed below. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claims. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. An unappealed October 2007 rating decision denied the Veteran service connection for left knee osteoarthritis, based essentially on findings that no permanent residuals or chronic left knee disability was shown at the time of discharge from active duty. The rating decision also denied service connection for right knee osteoarthritis, based essentially on findings that no right knee disability was incurred in or caused by active duty. No new and material evidence was received within the following year. Generally, when the RO denies a claim, and the veteran does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has 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). The evidence of record at the time of the October 2007 rating decision included the Veteran's STRs, National Guard service treatment records, private treatment records, a VA examination, and lay statements from the Veteran. The Veteran's STRs reflect that in February 1986, he pulled a muscle in his left leg during jump school; he reported tenderness upon palpation and stretching of the left knee. He reported bilateral knee pain times three days in September 1989; he reported the pain had been intermittent for two years since jump school. The assessment was non-specific patellar soreness. On an undated service examination, the Veteran was noted to have a positive patellar grind test and arthritis, not otherwise specified, of the right knee. On June 1990 service separation examination, the lower extremities were normal on clinical evaluation; on a contemporaneous report of medical history, he denied any history of bone, joint or other deformity or of "trick" or locked knee. On May 1993 Army National Guard enlistment examination, the lower extremities were normal on clinical evaluation. In a March 1994 annual medical certificate, he reported that he injured his knee in a fall at work in February 1994. On February 1998 periodic examination, he reported a right knee injury in October 1997; he also reported multiple injuries, including the knee, in a car accident in 1991. In June 2003 Physical Evaluation Board proceedings, he was noted to have incurred a right knee meniscal tear. On November 2004 treatment, the Veteran reported significant right knee pain and tenderness along the medial joint line as well as effusion. An MRI showed a medial meniscal tear and joint effusion. Right knee arthroscopic surgery was suggested. On February 2006 treatment, the Veteran was noted to be on physical profile for an injury to the right medial meniscus; he had a history of right knee injury yet had full range of motion of the lower extremities. On December 2006 treatment, the Veteran complained of intermittent (26 to 50 percent of awake time) pain in the right knee rated as 9 out of 10 in severity. The assessments included knee pain. On September 2007 VA joints examination, the Veteran reported that he first noticed severe bilateral knee pain in approximately 1988. He reported no specific injury or accident in service that he could recall. He was currently employed as a mail carrier. He had received corticosteroid injections to the knees and took pain medications. X-ray results showed moderate suprapatellar effusion of the left knee and mild medial compartment degenerative changes with very small effusion of the right knee. Following a physical examination, the diagnoses included mild bilateral knee osteoarthritis. No opinion was given regarding etiology. Evidence since October 2007 includes private treatment records reflecting treatment for bilateral knee disabilities, private medical opinions, a VA examination and addendum opinion, and lay statements and hearing testimony from the Veteran. In a November 2009 statement, Dr. McInerney stated that he had treated the Veteran in July 2009 and October 2009 regarding his bilateral knee conditions. In a November 2009 statement, the Veteran stated that he suffers daily from his chronic knee condition, with the pain more severe in the left knee. In a June 2011 statement, Dr. McInerney opined that the Veteran's persistent knee pain is related to his military duties that he has been carrying out for many years. He noted the Veteran's report that his knee pain started when he was in the military and was related to all of his vigorous activities within the military area. Dr. McInerney opined that the Veteran's signs and symptoms are consistent with this information that the Veteran provided. He noted that the Veteran continues to struggle with the left knee pain, particularly in the medial aspect of the knee, and he has chondromalacia patellae of both knees. On July 2012 VA examination, the examiner noted the September 2007 X-rays showing some mild degenerative joint disease to both of the Veteran's knees. The Veteran complained of bilateral knee pain; he did not remember any specific trauma in his knees but stated that he had knee pain when he was in the service from running, jogging, jumping, and parachuting. He reported that over the years, his knees had been hurting bilaterally anterior, mostly over the patellar region, interfering with his daily activities including going up and down stairs and running. He reported that his knee disabilities interfered with his job as a mail carrier. He had received cortisone injections about one year earlier and physical therapy about five years earlier. Following a physical examination, the assessments included bilateral knee patellofemoral syndrome and bilateral knee degenerative joint disease. The examiner opined that the Veteran's bilateral knee condition is less likely as not related to his military service, based on the fact that although he did have some complaints of knee pain in February 1986 for the left knee and September 1989 for both knees, the examiner saw no evidence of any severe trauma that would cause a lasting knee problem or condition. The examiner noted that the Veteran currently has degenerative joint disease of both knees and opined that, if the degenerative joint disease were caused by being in the service, then he would have had severe trauma which could cause posttraumatic arthritis, which is not the case. The examiner saw no evidence of any excessive injuries to the knees; he had some normal wear and tear and general run of the mill knee pain, which resolved. The examiner noted that the Veteran was seen [for knee pain] and released, and he did not frequently complain of knee pain; he was seen infrequently and the pain resolved. The examiner opined that if the Veteran's knee problems were caused by his military service, he would have been seen throughout the 1990s and 2000s complaining of knee pain, which is not the case. Regarding the patellofemoral syndrome of the knees, the July 2012 examiner opined that this is usually due to a patient's body habitus imbalance of the quadriceps muscles, repetitive motion, and/or the patient's occupation. The examiner noted that as a mail carrier, the Veteran would do a lot of walking up and down stairs, and squatting which can cause irritation to the patellofemoral syndrome. The examiner opined that the Veteran's chondromalacia patellar condition might have been irritated while in service but was not caused by being in service. The examiner opined that the Veteran's occupation as a mail carrier is in all likelihood causing his current knee pain and problems due to the walking and physical activity. Private treatment records through July 2012 reflect ongoing bilateral knee symptoms. In a September 2012 statement, the Veteran's supervisor stated that he had been on his current route since May 1996, which consisted of 85 percent cluster box outdoor apartment delivery. The supervisor stated that the Veteran does minimal walking and limited bending or squatting during his daily delivery of his route. In a May 2013 addendum opinion, the July 2012 VA examiner noted the statements from the Veteran's supervisor and Dr. McInerney. The examiner opined again that the Veteran's bilateral knee condition is less likely as not related to his military service, based on the fact that though he did have some complaints of knee pain in February 1986 (of the left knee) and September 1989 (of both knees), the examiner saw no evidence of any severe trauma that would cause any lasting knee problems or any permanent conditions. The examiner noted that the Veteran currently has degenerative joint disease of both knees which, if it were caused by his time in service, would have been posttraumatic and the Veteran would have had to have some severe trauma which would cause the posttraumatic arthritis, which is not the case. The examiner noted that the Veteran had just been seen recently for his knee pain, which led him to believe that it is a new condition related to his age. The examiner opined that, even though the Veteran states his current walking as a mailman is not severe, he did not believe it had anything to do with the Veteran's current patellofemoral syndrome not being due to his military service. The examiner's opinion was based on the fact that patellofemoral syndrome is due to the body habitus and muscle imbalance, and the examiner saw no evidence of any injuries which would cause the Veteran's patellae to become maltracked or malaligned in service. At the October 2014 Travel Board hearing, the Veteran testified that his knee problems first began when he was a paratrooper in the Army. He testified that he was inducted with mild flat feet and, because of his feet and jumping out of airplanes, he developed problems with his knees. He testified that he was a radio operator who carried more equipment than the average soldier did, which he believes caused additional trauma to his knees. He testified that he was treated for his knees in service and, post-service, he has sought treatment for his knees for the previous 15 years. He testified that his post-service employment included working as a medical clerk in a hospital and as a letter carrier for the U.S. Postal Service for 20 years, for which his route incorporated more cluster boxes than walking up and down stairs; he contends that his post-service employment did not cause his knee damage. In a December 2014 statement, Dr. McInerney stated that the Veteran has chronic knee pain related to his military duties, which the Veteran reported began as a result of his vigorous activities in the military. Dr. McInerney opined that the Veteran's signs and symptoms are consistent with this information and he continues to struggle with left knee pain, particularly in the medial aspect of the knees; his diagnosis is chondromalacia patellae of both knees. Because service connection for arthritis of both knees was denied in October 2007 based on findings that the evidence did not establish that the Veteran's bilateral knee disabilities began during or were caused by the Veteran's service, for evidence to be new and material in these matters, it would have to tend to relate to those unestablished facts. The new evidence received since the October 2007 rating decision includes private treatment records and medical statements relating the Veteran's current bilateral knee disabilities to his service. The treatment records and medical opinions are new and, considered with evidence previously in the record, tend to address an unestablished fact necessary to substantiate the Veteran's claims (i.e., that the knee disabilities were incurred in or caused by service). Therefore, they are both new and material evidence. Accordingly, particularly in light of the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App., 110, 117-18 (2010), the claims of service connection for arthritis of both knees may be reopened. Inasmuch as the RO has already addressed the merits of the service connection claims (in the July 2012 statement of the case), the Veteran is not prejudiced by the Board also addressing the merits of this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Chronic bilateral knee disabilities were not noted in service or clinically noted post-service prior to 2004 (right knee) and 2007 (left knee), and service connection for left or right knee disabilities on the basis that either such disability became manifest in service and persisted is not warranted. As arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. Furthermore, the preponderance of the evidence is against a finding that the Veteran's current bilateral knee disabilities are related to his service. The Board finds the July 2012 VA examination and May 2013 addendum opinion to be entitled to great probative weight, as they took into account a thorough review of the Veteran's claims file and medical history, including the statement of Dr. McInerney that were in the record at that time. The examiner's opinion was also based on a physical examination complete with X-rays and includes a historically accurate explanation of rationale that cites to factual data. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Further, the examiner clearly reviewed all the evidence of record, including the Veteran's contentions. The Board finds Dr. McInerney's June 2011 and December 2014 opinions to be much less probative and persuasive because they were not based on a thorough review of all the evidence of record but, instead, were based predominantly on the Veteran's self-reported history and a current physical examination, as well as a select few medical records. There was no indication of a thorough review of the claims file (to include the complete medical evidence of record, including the contemporaneous June 1990 service separation examination which noted normal clinical evaluation of the lower extremities and wherein the Veteran denied knee problems), and the provider did not account for the factual data that weigh against the Veteran's claim, to include the absence of any documentation of complaints or treatment for an extended period of time postservice (during which the Veteran was engaged in employment with physical demands as a letter carrier) and the July 2012 VA examination and May 2013 addendum opinions. Dr. McInerney's opinion is also afforded little probative weight because it appears to be based on the inaccurate presumption that all of the Veteran's time in service may be considered when determining entitlement to service connection, as he states that the Veteran's knee disabilities are "related to his military duties that he has been carrying out for many years." The Board notes that the Veteran served on active duty for only 5 years, from 1985 to 1990. Dr. McInerney's statement appears to include the Veteran's National Guard service from approximately 1993 to 2003 which was not active duty for VA compensation purposes. However, active or inactive duty for training periods may be considered active service if "veteran" status is first established for these periods. 38 C.F.R. § 3.6. The Veteran does not contend, and the evidence does not show, that Veteran status has been established for any period of active or inactive duty for training. The Board may reject a medical opinion that is based on inaccurate facts. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The preponderance of the evidence is against a finding that any current left or right knee disability is related to service. The persuasive medical evidence is to the effect that the chronic disorders diagnosed after service were not actually manifested during service. The evidence is not in a state of equipoise on the question of nexus between any diagnosis of a right or left knee disability and the Veteran's service. Simply stated, the Board finds that the service and post-service treatment records, overall, provide evidence against these claims, indicating that the Veteran does not have a current right knee disability or left knee disability related to service. More importantly, the more competent evidence of record provides evidence against a finding that any current right or left knee disability was incurred in or caused by the Veteran's active service. Regarding the Veteran's own opinion that he has bilateral knee disabilities that are due to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the probable etiology of a disorder such as arthritis falls outside the realm of common knowledge of a lay person. He has no demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in these matters has no probative value. While continuity of symptomatology can constitute the required nexus for establishing that arthritis is of service origin, in this case continuity of symptomatology is interrupted by the records of his numerous postservice injuries: he injured his knee in a fall at work in February 1994; on February 1998 periodic examination, he reported a right knee injury in October 1997; and he reported multiple injuries, including the knee, in a car accident in 1991. The belief that his current bilateral knee disability is related to his post-service symptomatology, given the history complicated by as many as 3 post-service knee injuries, including one shortly after service, extends beyond an immediately observable cause-and-effect relationship to which a lay person's observation is competent. As such, to the extent the Veteran's statements address the theory of continuity of symptomatology, they are not competent evidence to address the linkage element of the continuity-of-symptoms inquiry in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, the preponderance of the evidence is against the Veteran's claims of service connection for right and left knee disabilities, and the claims must be denied. ORDER The appeal to reopen a claim of service connection for left knee osteoarthritis is granted. Service connection for arthritis of the left knee is denied. The appeal to reopen a claim of service connection for right knee osteoarthritis is granted. Service connection for arthritis of the right knee is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs