Citation Nr: 1757044 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-21 964 ) 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 submitted to reopen a previously denied claim for entitlement to service connection for a right wrist disorder. 2. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Matthew I. Wilcut, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1974 to November 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Board notes that the Veteran was previously represented by the North Carolina Division of Veterans Affairs. He later changed his representative to attorney Gentry C.M. Hogan in February 2016. In October 2017, he appointed attorney Matthew I. Wilcut as his representative. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2016. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. FINDINGS OF FACT 1. In November 2016, prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal of the issue of whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a right wrist disorder be withdrawn. 2. In a February 2011 rating decision, the RO denied the Veteran's service connection claim for a right knee disorder. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 3. The evidence received since the February 2011 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a right knee disorder. 4. The Veteran right knee disorder, diagnosed as osteoarthritis, is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a right wrist disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The February 2011 rating decision that denied the Veteran's service connection claim for a right knee disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 3. The evidence received since the February 2011 rating decision is new and material, and the claim of entitlement to service connection for a right knee disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria to establish entitlement to service connection for a right knee disorder, diagnosed as osteoarthritis, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether New and Material Evidence has been Submitted to Reopen a Previously Denied Claim for Entitlement to Service Connection for a Right Wrist Disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his authorized representative. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. During the November 2016 hearing, the Veteran testified on the record that he wished to withdraw the issue of whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a right wrist disorder. See November 2016 Board Hearing Transcript (Tr.), page 2. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed. Whether New and Material Evidence has been Submitted to Reopen a Previously Denied Claim for Entitlement to Service Connection for a Right Knee Disorder The Veteran's service connection claim for a right knee disorder was initially denied in a February 2011 rating decision. The rating decision determined that there was no nexus between the Veteran's current right knee disorder and his active service. The Veteran was notified of the decision and his appellate rights in a March 1, 2011 letter. However, the Veteran did not file a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the February 2011 rating decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provided sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As arthritis and is considered to be chronic diseases for VA compensation purposes, if chronicity during service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the time of the February 2011 rating decision, the evidence of record included the Veteran's statements, his DD Form 214, service treatment records (STRs), VA treatment records dated from September 2010 to February 2011, and a February 2011 VA examination. The Veteran's DD Form 214 shows that his last duty assignment was with Company A, 3rd battalion, 187th infantry, 101st Airborne Division (Air Assault). He also received the air assault badge during service. A review of the Veteran's STRs reflects that no knee problems were noted in his November 1974 enlistment examination or Report of Medical History. Later on August 7, 1975, the Veteran reported injuring his right knee and leg two days before the visit. He had fallen in a hole out in the field and twisted his right knee. The Veteran was unable to fully extend the right knee, and both pain and tenderness were present in the lateral aspect of the right knee. The impression was medial collateral ligament strain. On August 14, 1975, the Veteran reported having knee pain for two weeks. The record noted that the original diagnosis was medial collateral strain. The physical examination was within normal limits. The record stated that the Veteran resisted extension, but was able to extend. The assessment was malingering. Despite this assessment, the Veteran still complained of pain and stiffness in his right knee on August 24, 1975. The next day, an August 25, 1975 STR noted the Veteran's report that his pain had been present since July 1975. The physical examination showed slight effusion with joint line pain. He could not fully extend his right leg. The impression was partial cruciate tear/strain. He was given a physical profile on this date for possible cruciate strain of the right knee. A subsequent August 26, 1975 x-ray report for the right knee stated that no significant abnormalities were present. The Veteran again complained of right knee pain on July 28, 1976, reporting that it had been present for four days. The examination showed that the knee was swollen and tender to touch. The impression was water on the knee. On June 10, 1977, the Veteran still had right knee complaints. He reported twisting his right knee. Some swelling was present, and the knee was tender to touch. He was assessed to have right knee strain. On August 24, 1977, an STR noted that the Veteran's right knee gave out the previous week. The assessment was chondromalacia. The Veteran's October 1978 separation examination noted that his lower extremities were normal upon clinical evaluation. However, the Veteran reported having a "trick" or locked knee in his October 1978 Report of Medical History. The physician's summary noted that this report related to the Veteran's right knee injury. After service, a September 2010 VA treatment record noted that the Veteran complained of right knee pain and reported it had been present for a while, but it was worsening. The Veteran indicated that he injured some ligaments during service. A subsequent January 2011 VA treatment record noted that the Veteran reported his knee pain started in 1976 or 1977 when he was repelling from a helicopter. The Veteran's knee swelled before he told he pulled the ligaments. The Veteran reported that his knee never felt completely better, and it worsened when he overdid activities. The record stated that he likely had residual knee pain and damage from posttraumatic inflammation years ago. Collateral ligament strain was also possible. The record added that there was no evidence of rheumatoid arthritis or any other inflammatory arthritis. During the February 2011 VA examination, the Veteran made a similar report that his right knee problems began in 1975 when he was repelling out of a helicopter. The Veteran's left leg went into a hole and his right leg twisted out of the hole, with the Veteran's knee flexed. The Veteran was told that he had sustained damage to the ligaments, and he received a brace and pills. Since that time, the Veteran described continuing right knee problems. The examiner diagnosed the Veteran with right knee osteophytic spurring of patella and old Pellegrini-Stieda disease. The examiner opined that it was less likely than not that the Veteran's right knee disorder was related to his right knee complaints from active service. The examiner noted that although there were in-service complaints, the Veteran's right knee was normal at the time of the October 1978 separation examination. The examiner found it persuasive that there were no additional records related to the right knee until September 2010 when the Veteran sought VA treatment. The examiner also acknowledged the report from the January 2011 VA treatment record that the Veteran's knee problems were likely residuals from posttraumatic inflammation years ago, but he stated that it was unclear when this inflammation would have occurred. The examiner concluded that the Veteran appeared to have experienced intermittent, but not chronic, problems with his right knee during service. In light of the fact that posttraumatic changes can result from any trauma, the Veteran's normal right knee x-ray during service, and the lack of an intercurrent right knee x-ray before his more recent treatment; it was unclear when the injury occurred. The Board notes that after the February 2011 rating decision, military personnel records were associated with the claims file. However, these records are related to administrative matters, such as background information, duty assignments, and awards that the Veteran received during service. Thus, these records are not related to the Veteran's service connection claim for a right knee disorder. As a result, the Board finds that the provisions of 38 C.F.R. § 3.156(c) do not apply to these facts and the Veteran's claim should not be reconsidered on this basis. Since the February 2011 rating decision, the record also includes a treatment record and medical opinion from N.S., Doctor of Osteopathic Medicine. N.S. noted that the Veteran's current diagnoses included right knee pain and mild to moderate osteoarthritis. She stated that the right knee pain was related to his osteoarthritis. N.S. also indicated that while the Veteran's military records were not available, she was familiar with the Veteran's patient records and history. In this regard, N.S. noted that the Veteran reported experiencing a trauma during service. N.S. opined that it was at least as likely as not that the Veteran's current right knee pain was directly related to his active service. N.S. explained that she was not aware of the Veteran having any other known, major risk factors that may have precipitated his condition. In her personal experience, the Veteran's type of diagnosis was not uncommon in light of his in-service experiences and physical demands. The opinion from N.S. is new as it is was not previously of record; and it is material as it relates to the question of nexus, a previously unestablished fact. The opinion also raises the reasonable possibility of substantiating the claim. Moreover, this evidence is presumed to be credible. Justus, 3 Vet. App. at 513. As a result, the Veteran's service connection claim for a right knee disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As the Board has reopened the Veteran's service connection claim for a right knee disorder, the Board has considered whether it is appropriate to address the merits of the claim without remand to the RO for action. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the RO, "it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby"). In light of the favorable outcome below, it is clear that the Veteran is not prejudiced by the Board's adjudication of the issue on a de novo basis. As noted in the opinion from N.S., the Veteran currently has osteoarthritis in his right knee. The Board also finds that the Veteran's report of injuring right knee during service while repelling from a helicopter is credible and consistent with the records showing that he was a member of the 101st Airborne Division (Air Assault); and the report from the August 1975 STR that the Veteran twisted his right knee in a hole. Consequently, the right knee injury is conceded. 38 U.S.C. § 1554(a). Regarding the question of nexus, the Board has evaluated the probative value the opinions provided by the February 2011 VA examiner and N.S. The Board finds that the May 2016 opinion from N.S. is highly probative. As the Veteran has been consistent in reporting that his right knee disorder is related to his twisting injury during service, and he has not identified any other in-service injuries, the Board finds that N.S. is referencing this injury in her discussion of his reported in-service trauma. Although N.S. specifically noted the Veteran's knee pain in her opinion, it is clear that her opinion also contemplates his right knee osteoarthritis as she associated the pain with osteoarthritis and included osteoarthritis in the Veteran's current right knee diagnoses. N.S. was therefore aware of the relevant facts, and she provided a rationale for her conclusion that was based on her medical knowledge and experience. The Board finds that the February 2011 VA medical opinion is less probative. The examiner gave great weight to the normal findings of the October 1978 separation examination, but he did not discuss the inconsistency between this examination and the Veteran's report of right knee problems in the associated Report of Medical History. The examiner also relied on the lack of documentation of right knee problems between service and the Veteran's treatment in 2010, but he did not acknowledge the Veteran's report of continuing right knee symptoms since his in-service injury. Moreover, the lack of contemporaneous medical evidence does not warrant a conclusion of a lack of nexus. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Based on the foregoing, the most probative evidence demonstrates that the Veteran's right knee osteoarthritis is related to the injury that occurred during active service. Service connection for a right knee disorder, diagnosed as osteoarthritis, is therefore granted. 38 C.F.R. § 3.303(d). As the record supports a grant of direct service connection, the Board need not consider any other theory of entitlement advanced. ORDER The appeal regarding the issue of whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a right wrist disorder is dismissed. New and material evidence having been received; the claim of entitlement to service connection for a right knee disorder is reopened. Entitlement to service connection for a right knee disorder, diagnosed as osteoarthritis, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs