Citation Nr: 1553345 Decision Date: 12/22/15 Archive Date: 12/30/15 DOCKET NO. 14-20 749 ) 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 received to reopen the previously denied claim for service connection for a right knee disability and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from April 1973 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The claim for service connection for a right knee disability was previously denied in a November 2009 rating decision. The Veteran did not appeal the decision and it is therefore final. 2. Evidence added to the record since the November 2009 denial raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right knee disability. 3. It is at least as likely as not that the Veteran's right knee disability was caused or aggravated by his service-connected right ankle disability. CONCLUSIONS OF LAW 1. The November 2009 rating decision that denied service connection for a right knee disability is final. 38 U.S.C.A. § 7104(b) (West 2014); 38. C.F.R. § 20.1100, 20.1104 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. A right knee disability is proximately due to the Veteran's service-connected right ankle disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The RO denied the Veteran's claim of entitlement to service connection for a right knee disability in a November 2009 rating decision. The Veteran did not appeal the decision and thus the decision is final. 38 U.S.C.A. §§ 7103; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. 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." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the last final decision, the Veteran has submitted a private medical opinion in support of his claim dated in December 2014. The private opinion reviewed all previous VA examinations of record, and provided a detailed rationale for the conclusions reached. This evidence was not before the VA at the time of the prior final denial, and therefore, by its nature as a supportive medical opinion, raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right knee disability. Therefore, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the Board finds that the weight of the competent and credible evidence of record supports the Veteran's claim, such that service connection for a right knee disability is warranted. Specifically, the Veteran contends that his service-connected right ankle disability has caused or aggravated his right knee disability due to the chronic nature of his right ankle disability that has caused many years of gait disturbance, weightbearing problems, and other painful residuals. In October 2009, a VA examiner provided an opinion on the matter, finding that such a relationship was less likely than not because the Veteran had the same diagnosis, arthritis, in both knees, but only the right knee was symptomatic. The examiner felt that the Veteran would show symptoms in both knees if such disability was due to the right ankle sprain. The examiner also stated that the Veteran's current symptomatology was in the medial aspect of the right leg, rather than the knee joint. In December 2013, another VA opinion was obtained that again found against a relationship between the Veteran's right ankle disability and his right knee disability. The examiner concluded that the Veteran's right knee disability was likely due to his significant work on his hobby farm, since he had developed increasing right knee pain during that time. The examiner went on to state that it was not uncommon clinically in the general population for degenerative joint disease to be more severe in one knee as compared to the other, however, it was difficult to quantitate the amount of physical stress farming had on his joint in general. Therefore, it was unlikely that his knee complaints would be specifically due to is ankle condition. In December 2014, the Veteran submitted a private medical opinion in support of his claim. The examiner concluded that it was as likely as not that the Veteran's right knee disability was caused or aggravated by his right ankle disability. The examiner reviewed the 2009 and 2013 VA examinations in reaching the above conclusion. The examiner reviewed the Veteran's medical history, demonstrating recurrent right ankle injuries in service and subsequent to service, as well as x-rays of the knee performed beginning in 2006 showing arthritis. The evidence showed that the Veteran had a total right knee arthroplasty in December 2013, as well as right ankle reconstruction in April 2013. Based upon a thorough review of the Veteran's history, the examiner explained that the Veteran's apparent extensive disability of the right ankle, necessitating reconstruction in 2013, had more likely than not resulted in excessive strain on the right knee, as well as ongoing gait disturbance, causing or aggravating his right knee disability. The examiner cited to relevant medical literature stating that following the sort of ankle sprain the Veteran experienced in service, there was normally an increase in knee valgus movements during functional tasks, and such in turn was considered to be a primary cause of chronic knee pain syndromes. Moreover, chronic ankle sprains, such as was the Veteran's history, most often resulted in decreased hip stability and gluteus medius weakness, other causes of knee pain. In other words, the Veteran's altered gait through the years resulted in excess strain on his right knee. The examiner found that the 2009 and 2013 VA examinations were inconsistent with the current medical literature, as the right ankle disability would in fact cause a more severe presentation on the affected extremity, rather than bilaterally. The Board finds that the 2014 private opinion is of higher probative value than the two VA examination opinions. For one, as was addressed by the private opinion, the 2009 and 2013 VA opinions provided inadequate rationale. In 2009, the examiner relied on the rationale that the Veteran would show symptoms in both knees if his right knee disability was related to his right ankle disability, but provided no explanation for that conclusion. In 2013, the examiner stated that the right knee disability could be related to the Veteran's history of farming, and thus could not be specifically related to his right ankle disability. However, such opinion did not rule out a causative relationship between the right ankle disability and right knee disability. Therefore, the two VA opinions lacked adequate medical rationale when reviewed against the 2014 private opinion. In that regard, the 2014 private opinion summarized the Veteran's medical history, provided a well-reasoned medical opinion, and cited to the relevant medical literature. Moreover, the 2014 private medical opinion comports with the medical evidence of record, showing that the Veteran has a longtime history of both right knee and right ankle disabilities necessitating surgery. In so finding, the Board places credible weight on the Veteran's statements that his chronic right ankle disability has affected his right knee, causing knee pain that worsened in the mid-2000s. In light of the competent, credible, and probative medical evidence of record, the Board finds that it is at least as likely as not that the Veteran's right knee disability was caused or aggravated by his service-connected right ankle disability. Thus, service connection for a right knee disability is granted. ORDER New and material evidence having been received, the claim for service connection for a right knee disability is reopened. Service connection for a right knee disability is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs