Citation Nr: 1757030 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-09 793 ) 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 previously denied claim of entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The appellant had a verified period of active duty for training (ACDUTRA) with the U.S. Army Reserve from August 1968 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefit currently sought on appeal. In June 2017, the appellant testified at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This appeal was processed utilizing Virtual VA and the Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. FINDINGS OF FACT 1. In a February 1973 rating decision, the RO denied entitlement to service connection for a right knee disability; although notified of the denial, the appellant did not initiate an appeal, and no pertinent exception to finality applies. 2. Evidence added to the record since the final February 1973 rating decision is new and raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for a right knee disability. 3. The appellant had a right knee disability that pre-existed his period of ACDUTRA and there is no competent probative evidence that the condition was aggravated beyond the natural progress during his period of ACDUTRA. CONCLUSIONS OF LAW 1. The February 1973 rating decision that denied service connection for a right knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 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. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. § 101, 106, 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the appellant nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the appellant fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Petition to Reopen Applicable law provides that an RO decision that is not appealed becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim that was denied. 38 U.S.C.A. § 5108 provides that "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Regulations provide that "new" evidence is existing evidence not previously submitted to agency decision-makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can neither be 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. See 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The law provides that evidence proffered by the appellant to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). In February 1973, the RO denied entitlement to service connection for a right knee disability. At that time, the RO considered the appellant's service treatment records which noted that one week into basic training, he was seen for pain in his right knee. The examiner noted a history of injury to the knee six years prior to his entrance. The appellant was subsequently discharged from service because of problems with his right knee. A positive nexus opinion dated December 1972 was also of record at the time of the rating decision; the examiner noted that surgery was performed on the appellant's right knee and he felt that the condition originated from the injury sustained in service. Based on the foregoing, the RO denied service connection for a right knee disability because it existed prior to enlistment and the evidence did not show that the condition was permanently aggravated by service. The February 1973 rating decision, with notice of appellate rights, was mailed to the appellant's address of record and was not returned as undeliverable. Therefore, although notified of the denial, the appellant did not initiate an appeal or submit new and material evidence relevant to his claim during the one-year appeal period following the issuance of the February 1973 rating decision. See 38 C.F.R. § 3.156(b). Accordingly, the February 1973 rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, an unestablished fact necessary to substantiate the claim for a right knee disability is competent evidence showing that his current diagnosis did not pre-exist service or it was permanently aggravated by service. The appellant submitted a petition to reopen his claim in April 2011; no new evidence was submitted at that time. A June 2011 rating decision found that there was no new and material evidence and declined to reopen the claim. Since the February 1973 decision, treatment records dated approximately December 2005 to July 2011, a private medical opinion dated July 2011, several statements from the appellant, including web documents and photographs have been associated with the file. He was also afforded a VA examination for his knee in December 2011 and a hearing before the Board in June 2017. Nothing in the treatment records associated with the file reveal any evidence that could be considered material and would substantiate the appellant's claim. However, in several statements and during the June 2017 hearing, the appellant denied having any knee injuries prior to service. He noted that he was unsure where the information came from . He testified that during basic training, he was seen by medical personnel after he saw bone popping out the side of his knee, however, he was offered no treatment. A Medical Board reviewed his condition and decided to relieve him from duty based on erroneous enlistment; the appellant believed this was incorrect because the doctor and his DD-214 stated it was a medical discharge. He also testified that two different doctors told him that his knee condition was a result of service. The credibility of this evidence is presumed for the limited purpose of assessing whether the evidence is material. His statements that he did not have a knee injury prior to service are material to his claim. Under these circumstances, the Board finds that new and material evidence has been received and the petition to reopen a claim of entitlement to service connection for a right knee disability is granted. III. Service Connection Generally, in order to qualify for VA benefits, a claimant must be a Veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. Accordingly, in order to establish entitlement to disability compensation benefits, he or she must first establish "veteran" status. The term "veteran" is defined in 38 U.S.C. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78. ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes." 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of the title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Although service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24Vet. App. 167, 172 (2010). Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. For the purposes of this case, the record does not show that prior to the appellant's period of ACDUTRA from August 1968 to October 1968, that he had any period of service in which "veteran" status was obtained. He did not serve on active duty, and has not established a service-connected disability. Thus, although the appellant underwent an October 1967 entrance examination prior to his period of ACDUTRA, the presumption of soundness does not attach in the absence of having attained "veteran" status through a prior period of service. See Paulson, 7 Vet. App. at 470; Smith, 24 Vet. App. at 48. In this case, the appellant argues that he did not have a right knee injury that pre-existed service. It was indicated in his service treatment records when he was seen for pain and "loose bodies" in his knee that he injured his it during a baseball game six years prior to entering the service. In September 1968, the Medical Board found that his condition was not caused by service, existed prior to entry on active duty and was not aggravated by active duty. Ultimately, the Medical Board recommended separation by reason of erroneous enlistment. The appellant had an opportunity to disagree with the Medical Board's findings and decision; however, the line stating "I do not agree with the Board's action and desire to appeal" was crossed out and his initials were placed below. Furthermore, he signed a disposition form with a subject line "Request for Separation," in which he requested discharge from the military by reason of erroneous induction/enlistment. It was noted that he did not meet prescribed induction/enlistment standards at the time of his induction/enlistment. The pre-existing injury is documented in his service treatment records; the evidence shows that he was aware of his pre-existing knee injury and only began attempting to correct that finding in 2011, over 40 years later. Accordingly, the appellant had a pre-existing disability prior to his period of ACDUTRA. Thus, in order to establish aggravation of a pre-existing condition during a period of ACDUTRA, the appellant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). As noted above, the appellant submitted a private opinion from a physician in July 2011 which stated that his right knee conditions were caused by or a result of his service. The physician opined that, the stress of basic training damaged his right knee, causing pieces to break off and form loose bodies which required surgical removal and now, osteoarthritis in his right knee. It was indicated that the appellant's service treatment records were not reviewed in making the opinion. The appellant's claims file was reviewed by a VA examiner in December 2011. The examiner opined that the appellant's right knee disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted the appellant had osteochondritis dissecans which likely began when he was child or when he injured his knee playing baseball. He went on to say: A radiograph at the time of his complaint in service comments on a sclerotic lesion of the medial femoral condyle, changes consistent with a chronic condition. Whilst the activity in service likely caused eventual separation of his osteochondral fragments this would represent and aggravation of a preexisting condition rather than being a direct cause. In regard to whether it was aggravated beyond its natural progression, it more likely was not. The expected sequelae of this condition include separation of the fragments and subsequent osteoarthritis. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is not entitled to service connection for a right knee disability. The Board considers the December 2011 VA opinion more probative than the July 2011 private opinion as to the nature and etiology of the appellant's right knee disability. Although both the VA examiner and the private opinion provider are competent to provide an opinion, and there is no question as to their credibility, the December 2011 VA opinion is more probative as the appellant's claims file was reviewed, and the opinion is accompanied by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Again, the private opinion was not made following a review of the appellant's claims file and is not consistent with the contemporaneous evidence of record. In other words, the Board weighs the December 2011 VA opinion more highly than the July 2011 private opinion. In determining whether the record reflects that the appellant's current right knee disability was aggravated during his period of ACDUTRA, the Board acknowledges the appellant's belief that his right knee disability manifested during ACDUTRA. The Board notes that the appellant is competent to report the symptoms such as pain or an injury. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, the Board does not question his credibility in his assertions that he experienced an injury to his right knee during his period of ACDUTRA. However, the appellant is not considered competent to medically attribute his current right knee disability to a specific cause, as doing so requires medical knowledge and expertise that the appellant has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the Board finds that although the appellant is competent to state that he does not recall any pre-service injury to his knee, his statements in that regard lack credibility. The great weight of the contemporaneous evidence notes that he injured his right knee prior to service, and this evidence is far more probative than the appellant's statements that he had no pre-service injury, which he contended in conjunction with his claim to reopen. Therefore, his statements do not constitute competent or evidence that show his right knee disability was aggravated during his period of ACDUTRA. To determine whether the appellant's right knee disability was aggravated during his period of ACDUTRA, the Board turns to the competent medical evidence of record. The preponderance of the evidence shows that the appellant had a pre-existing right knee disability prior to his period of ACDUTRA. The appellant has not established by competent evidence that his period ACDUTRA caused any permanent increase in the severity of his right knee condition beyond the natural progress of that condition. As explained above, the appellant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan, 24 Vet. App. at 173-75. The appellant has not presented evidence that meets this burden. The Board therefore concludes that the most probative evidence of record shows that the appellant had a pre-service right knee injury that was not aggravated during a period of ACDUTRA. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ORDER New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a right knee disability is granted. Service connection for a right knee disability is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs