Citation Nr: 1757023 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 13-29 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee condition. 2. Entitlement to service connection for a left knee condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1980 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the request to reopen a claim of entitlement to service connection for a left knee condition, previously denied via an unappealed October 2005 rating decision. The Veteran submitted a notice of disagreement to the September 2011 rating decision in October 2011. A statement of the case was issued in August 2013. The Veteran filed a timely substantive appeal later in August 2013. In December 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing; a transcript of the proceeding is of record. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. At the December 2016 hearing, the Veteran appeared to raise the issue of entitlement to service connection for sickle cell trait aggravated by his service. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. §§ 3.150(a), 3.155(a). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Therefore, the Veteran's December 2016 statement regarding entitlement to service connection for sickle cell trait is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. By an October 2005 rating decision, the RO denied the Veteran's claim for service connection for a left knee condition; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the October 2005 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee condition, and raises a reasonable possibility of substantiating the claim. 4. The Veteran's left knee condition is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The October 2005 rating decision to deny service connection for a left knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a left knee condition. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. The criteria for service connection of a left knee condition are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (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. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claim. Specifically, VA has obtained the Veteran's service treatment records. Post-service VA and private treatment records have also been obtained, as well as lay statements of the Veteran. In summary, the evidence of record provides sufficient information to adequately evaluate the claim, thus further assistance with the development of evidence is not required, nor is there notice delay or deficiency identified as resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Board finds that VA has fulfilled its duties to notify and assist the Veteran, therefore appellate review may proceed. II. New and Material Evidence The Veteran's claim of entitlement to service connection for a left knee condition was originally denied by an October 2005 rating decision. The RO denied the claim because there was no evidence that the claimed condition existed. The RO notified the Veteran of its decision and of his appellate rights, but he did not initiate an appeal of the rating decision within one year of the rating decision, nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the October 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran filed a claim to reopen the previously-denied left knee claim in April 2011. It was denied via a September 2011 rating decision. The RO found new and material evidence existed to reopen the previously-denied claim. Regardless of whether the RO reopened the Veteran's claim, the Board must decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The relevant evidence added to the record since the October 2005 denial includes VA treatment records and lay statements regarding the Veteran's medical history that he contends is related to the cause of his left knee condition. This new evidence includes a diagnosis related to the left knee. In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. In this case, the evidence includes lay statements in support of the Veteran's contention that his left knee condition was caused or aggravated by physical training in service. For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). There is also medical evidence of a current left knee diagnosis during the current appeal period. Thus, the evidence added to the record since the last final denial is new. It is also material, as it raises a reasonable possibility of substantiating the claim by supporting the current diagnosis element of service connection, which was not met at the time of the previous denial. Therefore, this evidence is deemed to be the requisite new and material evidence needed to reopen the claim of entitlement to service connection for a left knee condition. III. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Left knee condition The Veteran contends that service connection is warranted for a left knee condition. After thorough review of the evidence, the Board concludes that entitlement to service connection for a left knee condition cannot be granted. As an initial matter, the Board notes that the Veteran has a current diagnosis of a left knee medial meniscus tear, as reflected in VA treatment records and the findings of the August 2011 VA examination. The Veteran's lower extremities were found to be clinically normal upon entrance to service in March 1980. Service treatment records (STRs) reflect complaints of and treatment for bilateral knee pain in July 1980. Therefore, the Board finds that the in-service incident element has been met. Thus, the inquiry turns to whether a nexus exists between the currently diagnosed left knee condition and the in-service treatment. In this regard, the Board finds that the Veteran is not competent as to the etiology of his left knee condition. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing pain during and after service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to opine on the complex medical question of etiology of conditions such as a meniscal tear. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The question of causation of a condition such as a meniscal tear involves medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Board notes the Veteran's most recent statements asserting that his knee condition is related to sickle cell trait. In a case such as this, where the left knee condition has multiple potential etiologies, lay testimony is insufficient to establish causation. As such, the Board assigns no probative value to the Veteran's assertions regarding etiology. Instead, the Board finds the objective medical evidence, including the August 2011 VA examination report, to be highly probative as to the issue of a nexus. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for the medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2011 VA examiner reviewed the claims file and conducted a physical examination of the Veteran. She noted each incident of complaint and treatment in service. Ultimately, she opined that it was less likely than not that the current left knee meniscal tear was related to the in-service knee condition. The Board notes that the Veteran addressed the August 2011 VA examination report, stating that he did not fall in a hole as indicated by the examiner. However, it appears that the examiner was referencing treatment records indicating that the Veteran experienced his knee giving out while walking across his yard. Taking the evidence of record into consideration, she found no nexus between the Veteran's service and the current left knee condition. Notably, there is no medical evidence of record which provides a positive nexus opinion connecting the condition on appeal to the Veteran's service. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Accordingly, the most probative evidence of record does not reflect a nexus between the Veteran's service and his diagnosed left knee condition. Based upon the evidence of record, the Board concludes that entitlement to service connection for a left knee condition cannot be granted. The competent, probative evidence does not reflect a nexus between the Veteran's service and his currently diagnosed left knee meniscal tear. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER New and material evidence to reopen a claim of entitlement to service connection for a left knee condition has been received; the appeal is granted to this extent only. Entitlement to service connection for a left knee condition is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs