Citation Nr: 1513677 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 13-16 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for left knee disorder. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1983 to July 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which declined to reopen the Veteran's service connection claims. Subsequently, in a June 2013 statement of the case, the RO essentially determined that new and material evidence sufficient to reopen the previously denied claims for service connection for right and left knee disabilities had been received but denied the underlying de novo issues of service connection. However, the Board is required to address the new and material issue and to reach the underlying de novo claims. Barnett v. Brown, 83 F. 3d 1380, 1383-1384 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In February 2014, the Veteran presented testimony in a travel board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In February 2014, the Board received additional evidence from the Veteran. This evidence has not been reviewed by the agency of original jurisdiction. However, the Veteran included a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2014). Thus, the Board will consider the newly submitted evidence in the first instance. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. In an April 2009 decision, the Board denied service connection for right and left knee disorders finding that the evidence failed to show that either disorder had been caused by service and that the medical evidence rendered the Veteran's assertions of having had knee pain since service incredible. The Chairman of the Board has not ordered reconsideration of that decision. 2. Evidence received since the April 2009 decision includes medical evidence that the Veteran's right and left knee disabilities are related to service, and competent and credible lay evidence of continuity of symptoms. 3. Resolving all doubt in favor of the Veteran, the Board finds that current degenerative joint disease and chondromalacia patella of the right and left knees had their onset in service. CONCLUSIONS OF LAW 1. The April 2009 decision that denied the claims for service connection for right and left knee disabilities is final. 38 U.S.C.A § 7104 (b) (West 2002); 38 C.F.R. § 20.1100 (2008). 2. New and material evidence has been received sufficient to reopen the claims of service connection for right and left knee disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). 3. Degenerative joint disease and chondromalacia patella of the right and left knees had their onset in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims of service connection for right and left knee disabilities were denied in an April 2009 Board decision on the basis that the disorders were not shown to have been caused by service and the medical evidence rendered the Veteran's assertions of having had knee pain since service incredible. The Chairman of the Board has not ordered reconsideration of that decision. Accordingly, the determination is final. At the time of that decision, the evidence of record included service treatment records showing that the Veteran sought treatment on one occasion for right knee pain. The earliest related post-service treatment records were dated in 1997. Notably, in a February 2005 VA examination report, a VA examiner opined that it was not likely that the Veteran's in-service event was related to his current conditions. Instead, the examiner found that the Veteran's current conditions were due to the aging process. Evidence received since the April 2009 Board decision includes a January 2013 VA examination report. In that report, the VA examiner opined that it was as likely as not that the Veteran's current bilateral knee chondromalacia patella and degenerative joint disease were causally related to, secondary to, and a result of his military service. In so finding, the examiner cited to the Veteran's continuity of problems and complaints with both knees since service. Additionally, the evidence includes an August 2000 VA treatment record showing the Veteran's complaint of right knee swelling and pain, his report of having had swelling of the other leg a few years before, and without a history of remote trauma to the knees. The new evidence also includes lay statements indicating that the Veteran has continually had problems with his knees since service, and he self-treated until he found out about treatment at the VA. Based on this evidence, the Board finds that there is sufficient evidence to reopen the claims for service connection for right and left knee disorders. There is now new and material evidence of a nexus between service and his current disorders, and documented evidence supporting his assertion of continuity of symptoms since service discharge. Having reopened the claims, the Board will now address the underlying merits of the claims. The Veteran essentially contends that his right and left knee disabilities are related to service, specifically that he experienced knee symptoms (e.g. swelling, giving, out, instability, pain) during service and ever since service. Having observed the Veteran at a hearing and upon review of the consistent statements of record, the Board finds these lay statements competent and credible. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2014). Arthritis may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101 , 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2014). The Board notes that there is no evidence of arthritis within a year of service separation and accordingly this presumption does not apply. In this case, the Veteran has been shown to have current diagnoses of knee disabilities as noted by the 2013 VA examination report noting chrondromalacia patella and degenerative joint disease. The Veteran's service treatment records show that he was seen for complaints related to his knee. The Veteran has provided competent and credible lay evidence of in-service knee symptoms and symptoms since that time. As to the nexus between these two factors, there are two medical opinions. The February 2005 VA examiner opined that it was not likely that the Veteran's in-service event was related to his current knee conditions, but instead his conditions were due to the aging process. On the other hand, the January 2013 VA examiner opined that it was as likely as not that the Veteran's current knee conditions were causally related to, secondary to, and result of his military service due to the Veteran's continuity of problems and complaints with both knees since service. The Board concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for degenerative joint disease and chondromalacia patella of the right and left knees is warranted. ORDER New and material evidence having been received the application to reopen a claim for service connection for a right knee disorder is granted. New and material evidence having been received the application to reopen a claim for service connection for a left knee disorder is granted. Service connection for degenerative joint disease and chondromalacia patella of the right knee is granted. Service connection for degenerative joint disease and chondromalacia patella of the left knee is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs