Citation Nr: 1753566 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-09 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left knee condition. 2. Entitlement to service connection for left knee condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1984 to July 1987, and the United States Army Reserves from March 4, 1991 to March 7, 1991 and from June 1991 to August 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that, in pertinent part, reopened the Veteran's claim for service connection for a left knee condition and denied the underlying service connection claim on the merits. Although the RO reopened the claim for service connection for a left knee condition in the August 2011 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. In May 2017, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. An unappealed July 1996 rating decision denied service connection for left knee condition; the claim was most recently denied in an unappealed rating decision in February 2008. 2. Subsequent to the February 2008 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left knee condition. 3. It is reasonably shown that the Veteran's left knee condition is etiologically related to his military duties as a paratrooper. CONCLUSIONS OF LAW 1. The February 2008 rating decision that continued the denial of entitlement to service connection for left knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. Evidence received since the final February 2008 determination is new and material, and the Veteran's claim for entitlement to service connection for left knee condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Service connection for a left knee condition is warranted. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). However, as this decision is completely favorable to the Veteran, there is no reason to belabor the impact of VA's duty to notify and assist on these matters. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Legal Criteria, Factual Background, and Analysis New and Material Evidence Generally, a claim which has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran's claim for entitlement to service connection for left knee condition was denied initially by a July 1996 rating decision based essentially on a finding that there was no indication of treatment for a left knee condition in service. The Veteran has attempted to reopen his claim on multiple occasions since then. It was most recently denied in a February 2008 rating decision because the RO found no evidence the Veteran's left knee condition was incurred in or was aggravated by service. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; therefore, it is final. At the time of the February 2008 rating decision, the record included the Veteran's service treatment records (STRs), VA treatment records, private treatment records, and the Veteran's lay statements. Subsequent to the February 2008 rating decision, records that address the Veteran's left knee condition were added to the record, including private treatment records, additional lay statements from the Veteran, a September 2010 buddy statement, a March 2013 private treatment opinion, a March 2017 private treatment opinion, and testimony provided at a May 2017 Board hearing. Such evidence qualifies as new evidence because it was not of the record at the time of the February 2008 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is also material, in that it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for left knee condition, specifically evidence the Veteran's left knee condition was caused by service. This new evidence raises a reasonable possibility of substantiating the Veteran's service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for left knee condition. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs are silent for any complaints, treatment, or diagnosis of a left knee condition. The first evidence of record of a left knee condition is a postservice March 1993 left knee anterior ligament reconstruction operative report. It is not the Veteran's contention, however, that he was treated for any left knee injuries/conditions in service. Rather, the Veteran contends his current left knee condition is related to his service, in that he was a paratrooper and sustained repeated impact to his knees from jumping out of airplanes. The Board recognizes the Veteran has a current left knee disability. This is confirmed by postservice treatment records showing left knee posttraumatic degenerative joint disease, status post left knee anterior ligament repair times three, status post left knee medial ligament repair, and status post left total knee arthroplasty. See November 2011 VA examination and April 2013 private treatment record. The Board also recognizes that the Veteran served as a paratrooper during active service, shown by his DD-214, service personnel records, a September 2010 buddy statement, and the Veteran's lay statements. Therefore, the question addressed in this analysis is whether there is a nexus between the Veteran's left knee condition and service, to include his military duties as a paratrooper. The Board finds the preponderance of the evidence supports the Veteran's left knee condition is related to service, specifically his military duties as a paratrooper. In March 2013, the Veteran's treating physician opined the Veteran's left knee injuries over the years were likely the result of several years in the Armed Services, particularly paratrooping and jumping out of airplanes on his tours of duty. In March 2017, the physician again opined that the Veteran's longstanding issues with his knees could be related back to his many years in the military as a paratrooper. The Board gives these opinions great probative weight. This physician specializes in orthopedics and has a longstanding treatment relationship with the Veteran. In April 2011, a VA examiner stated he could not opine without resorting to mere speculation as to whether the Veteran's currently claimed left knee condition was the result of events in service or due to the Veteran's job duties of paratrooping during active duty. The Board gives this opinion no probative weight as it lacks sufficient explanation of the need to speculate. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). In summary, the Board finds there is competent and probative evidence showing the Veteran's left knee condition is etiologically related service. The Veteran also contended that his service-connected left ankle condition caused or aggravated his left knee condition. As the Board has come to a favorable determination on a direct service connection basis, there is no need to discuss the Veteran's secondary service connection contention. Resolving any reasonable doubt in favor of the Veteran, entitlement to service connection for left knee condition is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal to reopen a claim of service connection for left knee condition is granted. Service connection for left knee condition is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs