Citation Nr: 1605354 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 13-18 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1969, with additional service in the Army National Guard of Pennsylvania from May 1976 to May 1979 and from July 1984 to July 1998. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. A June 1971 rating decision denied the Veteran's claim of entitlement to service connection for a left knee disorder. 2. Evidence associated with the claims file since the June 1971 rating decision was not of record at the time of the June 1971 rating decision and relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a left knee disorder. 3. The preponderance of the evidence of record shows that the Veteran's currently diagnosed left knee disorder is related to service. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for a left knee disorder is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5103A, 5107, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 2. A left knee disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the Veteran's service treatment records from his period of active service are incomplete, and only his entrance and separation examinations are associated with the claims file. In a June 2011 memorandum, VA made a formal finding that the Veteran's remaining service treatment records were unavailable. In cases where service treatment records are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's left knee disorder claim loss has been undertaken with these heightened duties in mind. An unappealed rating decision in June 1971 denied the Veteran's claim of entitlement to service connection for a left knee disorder on the basis that the record did not show that the condition was incurred in or aggravated by service. The relevant evidence of record at the time of the June 1971 rating decision consisted of the Veteran's entrance and separation examinations and a May 1971 private hospital report. The Veteran did not file a notice of disagreement after the June 1971 rating decision. Therefore, the June 1971 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In December 1983, the Veteran requested that his left knee disorder claim be reopened, but did not submit any evidence along with this request. A February 1984 letter informed the Veteran that, in order to reopen his claim, he had to submit new and material evidence showing that the disability was incurred in or aggravated by service. The Veteran was informed that "[u]ntil we receive such evidence, we can take no further action on your claim." The Veteran did not reply to this letter or otherwise submit any additional documents to VA until December 2010, when he filed a new claim from which the current appeal arises. Accordingly, the Board finds that the Veteran abandoned his December 1983 claim, and it is not pending. 38 C.F.R. § 3.158(a) (2015). Notwithstanding the above, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims folder relevant service department records that existed, but were not of record, at the time of the initial adjudication, VA must reconsider the claim. 38 C.F.R. § 3.156(c) (2015). In this case, service personnel records were added to the Veteran's claims file after the June 1971 rating decision and qualify as service department records that existed, but were not of record, at the time of the initial adjudication. However, the provisions of 38 C.F.R. § 3.156(c) do not require the Board to consider this claim as a result of the inclusion of these records, as they are not relevant to the claim decided herein. These records do not contain any information regarding any injury or disease experienced by the Veteran, nor do they document the presence, or absence, of a period of hospitalization. Accordingly, the provisions of 38 C.F.R. § 3.156(c) do not require the Board to reconsider the Veteran's claim as a result of the service personnel records, as this new evidence is not relevant to the determination of the new and material issue currently before the Board. Furthermore, while additional National Guard service treatment records were added to the file after June 1971, those records were dated after June 1971 and thus did not exist at the time of the initial adjudication. Although the RO determined in June 2013 that new and material evidence was presented to reopen the claim of entitlement to service connection for a left knee disorder, this decision is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. In December 2010, a claim to reopen the issue of entitlement to service connection for a left knee disorder was received. Evidence of record received since the June 1971 rating decision includes private medical records documenting treatment for the Veteran's left knee disorder as well as the transcript of a May 2014 hearing before the Board. This evidence is "new" in that it was not of record at the time of the June 1971 decision. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156. In addition, the new evidence includes statements from the Veteran regarding the nature of his in-service injury and reporting continuity of symptomatology from that injury to the present day. The claim was previously denied on the basis that the evidence did not show that the condition was incurred or aggravated in service. Therefore, the new evidence includes competent and credible evidence which relates to an unestablished fact necessary to substantiate the Veteran's claim and the new evidence creates a reasonable possibility of substantiating the claim. As the new evidence is also material, the case must be reopened. Molloy v. Brown, 9 Vet. App. 513, 516 (1996) (concluding that "where evidence supports service incurrence of an injury, the Board may not, on the one hand, deny the claim for lack of medical evidence and later, when medical evidence is submitted, refuse to reopen the claim due to the lack of evidence of service incurrence"). The Veteran's July 1963 service enlistment examination was negative for any lower extremity abnormalities. On the May 1969 service separation examination report of medical history, the Veteran denied experiencing swollen or painful joints, arthritis, bone or joint deformity, trick knee, and locked knee. On physical examination, the Veteran's lower extremities were normal. After separation from service, a May 1971 private medical report stated that the Veteran had been admitted for hospital treatment from March 23, 1971, to March 31, 1971. The report stated that this was the second admission at that hospital and that the Veteran had "injured his left knee in 1965 while in the Armed Service. Patient was hospitalized and placed in traction for two months, along with a physiotherapy regimen." The Veteran complained of pain and stiffness in the left knee, and on x-ray examination there was an exostosis of the distal medial femur. The report stated that the Veteran underwent a left knee operation with excision of the exostosis. Since May 1971, the medical evidence of record consistently demonstrates a diagnosis of a left knee disorder, to include a left total knee replacement operation in February 2010. On a May 1984 periodic service medical examination report of medical history, the Veteran reported a history of swollen or painful joints, but denied experiencing arthritis, bone or joint deformity, trick knee, and locked knee. The Veteran reported having a surgical operation on his left knee in 1971. On examination, the Veteran's lower extremities were normal. On a February 1988 periodic service medical examination report of medical history, the Veteran reported a history of swollen or painful joints, but denied experiencing arthritis, bone or joint deformity, trick knee, and locked knee. The Veteran reported having a surgical operation on his left knee in 1974. On examination, the Veteran's lower extremities were normal. On a November 1991 periodic service medical examination report of medical history, the Veteran reported a history of arthritis, but denied experiencing swollen or painful joints, bone or joint deformity, trick knee, and locked knee. The Veteran reported having arthritis in his left knee and a surgical operation on his left knee in February 1991. On examination, the Veteran's lower extremities were normal, though it was noted that the Veteran had a scar on the left interior of the left knee. On a May 1997 periodic service medical examination report of medical history, the Veteran reported a history of swollen or painful joints, but denied experiencing arthritis, bone or joint deformity, trick knee, and locked knee. With respect to the joint pain, the Veteran reported a history of bilateral knee arthritis. On examination, the Veteran's lower extremities were normal. A May 2009 private medical report stated that the Veteran had undergone two separate left knee surgeries in the 1970s. A May 2013 VA medical examination report opined that the Veteran's left knee disorder was less likely than not related to military service. In making this finding, the examiner stated: Most importantly, in my medical opinion regarding this veteran's claim, the veteran himself on May 12, 1969 did not identify any condition that would be related to his knee. He checked off "no" to arthritis or rheumatism, no to bone, joint, or other deformity. No to trick or locked knee. He did not mention any left knee condition, in other words, on his own statement, when he separated from active duty May 12, 1969. The reviewing physician also noted no knee condition. The veteran was stated to [sic] "Patient denies all other significant medical and surgical history." . . . In other words, in my medical opinion, this was a very detailed review of this veteran's past history while on active duty by the reviewing physician. In a May 2014 transcript of a hearing before the Board, the Veteran stated that he injured his left knee while playing baseball in 1965. He gave a detailed report of the injury, and stated that the next day he was transferred to a military hospital, where he was put in traction for two to three months. He stated that on discharge, his left leg was smaller than his arm due to weight loss and he could not bend it. He reported experiencing symptoms continuously after separation from service, which eventually caused him to seek treatment from the medical facility which created the May 1971 medical report. He stated that between separation from service and May 1971, he was "constantly getting fluid drained out of my knee. Constant pain. I was popping Tylenol constantly at work so I can do my days because I had a family to take care of." The Veteran reported that he began receiving treatment at the private hospital in late 1970. The preponderance of the evidence of record demonstrates that the Veteran's currently diagnosed left knee disorder is related to active service. The Veteran has a current diagnosis of a left knee disorder. The Veteran is competent to report that he experienced a knee injury in service that resulted in two months of hospitalization, as well as continuing left knee symptoms such as pain since that time. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran's claim has been denied, essentially, because he checked "No" to several boxes on his May 1969 separation report of medical history, and because the examiner marked an X in the box "Normal" for the Veteran's lower extremities. These few marks have been found to outweigh all of the Veteran's other statements regarding the history of his left knee disorder. The Board disagrees with this assessment. With the exception of the single May 1969 report, the Veteran has consistently reported experiencing left knee symptoms in numerous medical reports of record from May 1971 to the present. The Veteran's description of his in-service injury, his symptoms, and his post-service treatment have not varied in any significant degree for the last 45 years. This consistency is remarkable, and lends great credibility to the Veteran's reports of his medical history. The Board particularly emphasizes that the probative value of the May 1969 separation examination is called into question by the fact that, on the subsequent May 1984, February 1988, November 1991, and May 1997 periodic service medical examination reports, the Veteran continued to omit check boxes in most of the same relevant areas as in May 1969, despite also specifically noting his left knee medical history in some manner on every single one. This demonstrates that, despite having had left knee surgery and reporting a diagnosis of left knee arthritis, the Veteran still, for whatever reason, felt those check boxes did not properly document the symptoms he was experiencing. Furthermore, all of the periodic service medical examination reports found the Veteran's left knee to be normal on examination, despite the fact that he had clearly undergone left knee surgery prior to those examinations, in some cases on multiple occasions, and in one case despite an actual left knee surgical scar being noted on examination. Corroboration through official records is not required to prove that an injury occurred in service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, in this case the Board has a heightened obligation to consider carefully the benefit-of- the-doubt rule due to the fact that nearly all of the Veteran's service treatment records have been lost. See O'Hare, 1 Vet. App. at 367. In this case, the Board finds the Veteran's account of his in-service injury to be credible, and the Board also finds the May 1969 separation medical examination report to be of very low probative value. While the May 2013 VA medical examination report opined that the Veteran's left knee disorder was less likely than not related to military service, that opinion was based very heavily on the May 1969 separation medical examination report. As such, the Board accords it no probative value. Thus, the preponderance of the evidence of record demonstrates that the Veteran experienced a significant in-service injury that resulted in two months of hospitalization, followed by continuous symptomatology from that time until the documented surgical operation in March 1971. The preponderance of the evidence of record also demonstrates that the Veteran then experienced continuous symptomatology from 1971 to the present, including to his documented left total knee replacement. As such, absent any probative evidence that his left knee disorder was the result of some other disease or injury, it is at least as likely as not that the current condition is related to service. Therefore, the claim is granted. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49 (1990); O'Hare, 1 Vet. App. at 367. ORDER Service connection for a left knee disorder is granted. ____________________________________________ JAMES D. RIDGWAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs