Citation Nr: 1800304 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-43 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty service from January 1965 to January 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Board notes that the Veteran's claims for service connection for right and left knee disabilities were previously denied in July 1968. In January 2013, the Veteran requested that his claims be reopened. In a February 2014 rating decision, the RO declined to reopen the Veteran's claims and further denied the claims in July 2014 and December 2014 rating decisions. However, following the issuance of the February 2014 rating decision, the Veteran submitted additional evidence in support of his claims, warranting reconsideration. As new and material evidence was submitted within one year of the February 2014 rating decision, and a substantive appeal was received within 60 days of issuance of the statement of the case, the February 2014 rating decision is not considered to be final and, in turn, the Board finds that the claims have been ongoing since the January 2013 claim to reopen. See 38 C.F.R. § 3.156(b) (2017). In May 2017, the Veteran provided testimony at a videoconference hearing. A transcript of the hearing is of record. During the hearing, the Veteran withdrew from appeal the claim for service connection for a lumbar spine disability. This matter is being formally dismissed, below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. In May 2017, prior to the promulgation of a decision by the Board, the Veteran withdrew from appeal his claim for service connection for a lumbar spine disability. 2. In a July 1968 rating decision, the RO denied the Veteran's claims for service connection for a right knee disability and for a left knee disability. 3. Evidence received since the July 1968 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a right knee disability, and raises a reasonable possibility of substantiating the claim. 4. Evidence received since the July 1968 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a left knee disability, and raises a reasonable possibility of substantiating the claim. 5. Resolving the benefit of the doubt in favor of the Veteran, right knee arthritis is shown to be etiologically related to active service. 6. Resolving the benefit of the doubt in favor of the Veteran, left knee arthritis is shown to be etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the claim for service connection for a lumbar spine disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. As new and material evidence has been received, the criteria for reopening the claim for service connection for a right knee disability are met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. As new and material evidence has been received, the criteria for reopening the claim for service connection for a left knee disability are met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 4. Right knee arthritis was incurred in active service. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. Left knee arthritis was incurred in active service. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims Withdrawn Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the pendency of the appeal, in testimony during the May 2017 Board hearing, the Veteran elected to withdraw the issue of entitlement to service connection for a lumbar spine disability from appellate consideration. Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to the matter of entitlement to service connection for a lumbar spine disability. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it must be dismissed. New and Material Evidence Claims Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted or received. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156(a) (2017). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interpreted the language of 38 C.F. R. § 3.156(a) (2017) as creating a "low threshold", and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F. R. § 3.159(c)(4) (2017), which does not require new and material evidence as to each previously unproven element of a claim. In other words, the evidence proffered only needs to be new and material, not new, material, and raise a reasonable possibility of substantiating the claim. That is to say, there are just two, not three, requirements for successfully reopening a claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's initial claim seeking service connection for right and left knee disabilities was denied in a July 1968 rating decision which determined that the Veteran had a preexisting right knee injury that was not aggravated by military service, and that a chronic left knee disability was not demonstrated on current VA examination. Although the Veteran was notified of the RO decision, he did not appeal either denial. Further, new and material evidence was not received within one year of the determinations. As such, the July 1968 rating decision is final with respect to both claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). Since that denial, in a May 2014 report, a private physician opined that the Veteran's current right and left knee disabilities (diagnosed as traumatic arthropathy right knee and left knee) are a result of in-service injuries. This information had not been previously considered and is sufficient to constitute new and material evidence in accordance with 38 U.S.C. § 5108; 38 C.F.R. § 3.156, and the claims are reopened. Service Connection In a statement of the case issued in August 2016, the RO found new and material evidence had been received to reopen the claims for service connection for a right disability and a left knee disability, and thereafter adjudicated the reopened claims on the merits, de novo, with denials of both claims. As such, there is no due process impediment to the Board's adjudication of the reopened claims on the merits, de novo, at this time. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110. Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease 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). The Veteran contends that service connection is warranted for both right and left knee disabilities. Specifically, he notes that he injured both knees during a fall in August 1966 and that he has continued to have ongoing pain and discomfort in both knees. He has consistently reported his history over several years while seeking service connection for both knee disabilities. The Veteran is currently diagnosed as having arthritis of the right knee and of the left knee. See January 23, 2014 private medical report of X-ray findings. The Veteran's service treatment records show that on Report of Medical History dated in January 1965, the examiner noted that the veteran had a previous severe sprain of the knee with occasional pain, no dislocation. On the accompanying Report of Medical Examination also conducted in January 1965, no defects of either knee were noted. In a June 1965 entry, the Veteran complained of a painful right knee for the past year and a half. The Veteran reported a past injury to his right knee and stated that it bothered him most when marching. An August 1966 entry noted that the Veteran fell four feet onto his knees. The left knee had a superficial laceration and the right knee had an abrasion. Both knees were contused. Another August 1966 entry shows that the Veteran fell four feet onto steel striking his left knee cap. The Veteran was diagnosed as having a contusion, left patella. He underwent an arthrocentesis of the left knee. The Veteran was seen for clinical evaluation of complaint of bilateral knee pain in January 2014. The examination report noted as medical history of right patella injury in the early 1960's in service, and noted that through the process of rehabilitation of his right knee, had aggravated and accelerated a degenerative process in the left knee. It was reported that X-rays obtained on the day of examination demonstrated severe tricompartmental osteoarthritis of the right knee and mild arthritic change of the left knee. The reported diagnosis was service related traumatic arthropathy of the right knee and left knee. In a May 2014 report, a private board certified orthopedic surgeon opined that the Veteran clearly had an injury to both knees during service and that service connection for both disabilities is warranted. The private physician stated that the opinion was based on a review of the Veteran's service-related records and current clinical and diagnostic examinations. On VA examination in November 2014, the VA examiner opined that the right knee condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in service injury, event or illness. The examiner's rationale was that on report of medical history in January 1965, the Veteran checked yes to "trick" or locked knee. In a May 2016 addendum, the VA examiner acknowledged that the Veteran did suffer a contusion to the left knee during service but that there is no medical evidence that the left knee condition has been chronic since discharge. The examiner opined that the left knee condition was not aggravated beyond the natural progression and the left knee condition and was not secondary to the right knee. In considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for arthritis of the right and left knees. There is a positive nexus opinion from a qualified private physician that both knee disabilities were incurred during active duty service. The private physician reported reviewing the Veteran's entire medical history in providing the opinion. The Board notes that the VA examiner provided negative nexus opinions with respect to both knees, however, the examiner applied the wrong legal standard in making this contradictory opinion. As only subjective complaints were recorded on the Report of Medical History at the time of service entrance, with no diagnosis or abnormal clinical findings actually found, the Board concludes that a right knee condition was not "noted" at entry. Further, while the VA examiner opined there was clear and unmistakable evidence establishing that a disability existed prior to service and was not aggravated by service, there was no identification of the clear and unmistakable evidence that served as the basis for such finding. The examiner also incorrectly reported that the left knee was not aggravated beyond the natural progression. Thus, the VA examiner's opinions are not afforded much probative value. Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). Therefore, the Board concludes that the evidence of record is at least in relative equipoise as to whether the Veteran's right arthritis and left knee arthritis are etiologically related to active service. Resolving all doubt in favor of the Veteran, the Board will grant his claims for service connection. 38 U.S.C. § 5107(b). ORDER The appeal as to the claim for service connection for a lumbar spine disability is dismissed. New and material evidence having been received; the claim of entitlement to service connection for a right knee disability is reopened. New and material evidence having been received; the claim of entitlement to service connection for a left knee disability is reopened. Service connection for right knee arthritis is granted. Service connection for a left knee arthritis is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs