Citation Nr: 1602809 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 13-02 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a left knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1984 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin. In December 2015 the Veteran testified at a personal hearing at the local RO (Videoconference Board hearing) before the undersigned Veterans Law Judge in Washington, DC. A transcript of the hearing is of record. FINDINGS OF FACT 1. An October 1992 rating decision denied reopening of service connection for a left knee disability, finding that a current left knee disability existed prior to service and was not aggravated therein, and that the Veteran had submitted no new and material evidence regarding the left knee. 2. The Veteran did not appeal the October 1992 rating decision within one year, and no new and material evidence was received within one year of the decision. 3. The evidence received since the October 1992 rating decision relates to an unestablished fact onset of a left knee disorder in service. 4. The Veteran has experienced continuous symptoms of degenerative joint disease of the left knee since service. CONCLUSIONS OF LAW 1. The October 1992 rating decision that denied reopening of service connection for a left knee disability became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen service connection for a left knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative joint disease of the left knee have been met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In the present case, the Board is granting the claim for service connection for degenerative joint disease of the left knee. This decision constitutes a full grant of the benefits remaining on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Reopening Service Connection for a Left Knee Disability The Veteran seeks to reopen service connection for a left knee disability. Service connection for a left knee disability was initially denied in December 1987 based on a finding that a left knee disability existed prior to service and was not aggravated therein. The Veteran did not timely file a notice of disagreement to that decision, and that decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. He subsequently filed to service connection claim, and reopening was denied in an October 1992 decision, which found that new and material evidence had not been received. As the Veteran did not timely file a notice of disagreement to the October 1992 decision, the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is new and material. See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). In the October 1992 rating decision, the RO denied reopening of service connection for a left knee disability on the basis that new and material evidence had not been received to reopen the prior final denial in December 1987. The bases for denial of service connection in the December 1987 decision were that a left knee disability existed prior to service and was not aggravated therein. The Board has reviewed the evidence received since the October 1992 rating decision and finds that it qualifies as new and material evidence to warrant reopening service connection for a left knee disability. The additional evidence received since the October 1992 rating decision relates to an unestablished fact regarding onset of a left knee disorder in service, that is, of service incurrence of a left knee disorder. During the pendency of the appeal, the Veteran submitted a medical opinion from a VA examiner dated in November 2010. This examiner opined that a current left knee disability was either incurred in or permanently aggravated by active duty service. The additional evidence also shows a diagnosis of arthritis of the left knee. The Board finds that this evidence, received after the October 1992 rating decision, is new, in that it was not before the rating board at the time of the original 1992 denial. This evidence is neither cumulative nor redundant of evidence previously considered by the RO. Further, the additional evidence received since the October 1992 rating decision is material because it relates to an unsubstantiated fact of in-service incurrence that is necessary to substantiate the claim; namely, that the Veteran has a current disability of the left knee (new diagnosis of arthritis) which was incurred as the result of active duty service. The diagnosis of arthritis of the left knee is a diagnosis distinct from the in-service diagnosis. As noted above, when making determinations as to whether new and material evidence has been received, the credibility of the evidence is generally presumed. See Justus, 3 Vet. App. at 513; Duran, 7 Vet. App. 216. This new evidence raises a reasonable possibility of substantiating the claim for service connection for a left knee disorder; thus, this evidence is new and material under 38 C.F.R. § 3.156(a) to reopen service connection for a left knee disorder. Further, the Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are not applicable. The Veteran did not submit any additional evidence within one year of the October 1992 rating decision; therefore, 38 C.F.R. § 3.156(b) does not apply. Nor have additional service department records previously not in the record been received since the October 1992 rating decision; therefore, 38 C.F.R. § 3.156(c) does not apply. Service Connection for Degenerative Joint Disease of the Left Knee Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2015). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the competent evidence shows that the Veteran has a current diagnosis of degenerative joint disease of the left knee. For a chronic disease such as arthritis (degenerative joint disease), service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R § 3.303(b). The presumptive service connection provisions based on chronic in-service symptoms and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Pain is a condition capable of lay observation; however, arthritis it is not the sort of medical condition that is capable of lay observation. Arthritis is not visible and requires an x-ray or similar study and skilled interpretation of the x-ray for diagnosis. As well, arthritis is not diagnosed based on symptoms of pain alone, of which the Veteran is competent to observe and state, but its presence is based on radiologic findings or other clinical testing. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. As with all claims, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that service connection has previously been denied by the agency of original jurisdiction on the basis that a left knee disability existed prior to service, and was not permanently aggravated therein. See 38 U.S.C.A. §§ 1132, 1137, 1153 (West 2014); 38 C.F.R. § 3.306 (2015). At the time of the prior VA adjudications, the weight of the evidence showed no diagnosis of arthritis; therefore, the presumptive provisions for chronic disease of arthritis at 38 C.F.R. § 3.303(b) were not invoked. See Walker (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). While at examination for service entrance in February 1984 the Veteran reported a history of left knee locking at age 12, a special orthopedic consultation at the time of the service entrance examination revealed a normal left knee, asymptomatic, and the Veteran was found fit for service. A February 1984 X-ray of the left knee was within normal limits. August 1979 private treatment records were reviewed, and a normal X-ray of the left knee was noted. As indicated, the evidence shows that the Veteran has a current diagnosis of degenerative joint disease of the left knee, according to the February 2011 VA examination report. The Veteran generally contends that he injured his left knee during service and that left knee pain has persistently continued since service separation. The Board finds that the weight of the evidence is at least in equipoise regarding whether the Veteran had continuous symptoms of left knee pain since service separation. The Veteran reported that he first injured his left knee during physical training at basic training, and that he continued to have problems with his left knee after graduating from basic. Service treatment records indicate that the Veteran was seen on several occasions during service, and was subsequently diagnosed with patellofemoral syndrome of the left knee. Additionally, the service separation physical noted the Veteran had left knee pain and tenderness at that time. Thereafter, the Veteran has stated that he has had reoccurring left knee problems for the past 25 years, approximately since he separated from service. Additionally, VA treatment records associated with the claims file assessed that the Veteran had long-standing left knee pain, and he reported that his knee pain had come and gone for years. At the December 2015 Board hearing before the undersigned Veterans Law Judge, the Veteran testified that, while he had an episode of left knee locking approximately five years prior to service, the knee was treated with a brace and he experienced no impairment thereafter, until service. The Veteran testified that, upon service entrance, he began to experience pain and tenderness of the left knee joint. Resolving reasonable doubt on the question of continuous symptoms since service separation, the Board finds that the evidence of record, both lay and medical, reflects that the Veteran has continuously experienced left knee pain, which began after the left knee was injured during training in service. Such evidence is sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of a left knee disability since service separation which was later diagnosed as degenerative joint disease. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous knee pain since service). For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran injured his left knee in service and has experienced continuous symptoms of a left knee disability of degenerative joint disease since separation from service in 1987 to meet the criteria for presumptive service connection for degenerative joint disease of the left knee under 38 C.F.R. § 3.303(b) based on continuous post-service symptoms. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact for the Board to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER New and material evidence having been received, the appeal to reopen service connection for a left knee disability is granted. Service connection for degenerative joint disease of the left knee is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs