Citation Nr: 1803188 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-09 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDINGS OF FACT 1. By a May 1973 rating decision, the RO denied the Veteran's claim for service connection for a right knee disability; he was advised of the RO's decision. 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. 2. Additional evidence received since the RO's May 1973 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 right knee disability, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's right knee disability is etiologically related to service. CONCLUSIONS OF LAW 1. The RO's May 1973 rating decision to deny service connection for a right knee disability is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1973). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a right knee disability. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. Resolving all doubt in the Veteran's favor, the criteria for service connection for right knee arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Claim In the present case, the RO, by a decision entered in May 1973, denied the Veteran's claim for service connection for a right knee disability on grounds that the Veteran had a knee injury subsequent to service. The RO notified the Veteran of its decision and included a Form Letter 21-103, which provides notification of appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the RO's decision became final. 38 U.S.C. § 4005(c) (1970). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was 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 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Prior to the May 1973 decision, evidence included service treatment records, private treatment records and VA examinations. The evidence received since the time of the RO's May 1973 rating decision includes a positive opinion from C.H., DO. This evidence was not before adjudicators when the Veteran's claim was last denied in May 1973 and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for a right knee disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). In the instant case, the Veteran contends that he a right knee disability due to an injury in service. October 1970 service treatment records document that the Veteran had twisted his right knee and it was painful and swollen. His January 1971 separation examination was normal. It noted that he had an injury to right knee diagnosed as sprain, "ok now except for pain in knee." A June 1971 VA examination indicated that the Veteran reported that he twisted his knee very easily and he currently had no pain, but when stepping the wrong way his knee gave out. His right knee had normal tone of quadriceps, no muscular atrophy, no swelling, and no tenderness. Imaging showed no fracture, dislocation or other bone or joint abnormality. November 1972 private treatment records reveal that the Veteran reported twisting his knee in service and now every two or three months he had pain in the right knee and impairment to walking. He complained of problems while working and that he had hurt his knee while jumping off a truck. The examiner also noted the Veteran gave a strong history of locking in the knee. The examiner diagnosed a torn right medial meniscus. At an April 1973, VA examination the Veteran reported he had hurt his right knee playing football and later reinjured it playing basketball, both in service. The examiner noted the Veteran had a November 1972 surgery and his diagnosis was residuals, postoperative, internal meniscus, right knee. The Veteran submitted an April 2011 opinion from C.H., DO noting the Veteran had been a patient of his since 2006 and stated that in 1970 he was playing football at Fort Bragg and twisted his knee. The Veteran stated he did not seek any care and about one month later he was playing basketball and hit and twisted his right knee. He was subsequently discharged from the military in 1971 and continued to have problems with his knee and was found to have a torn right medial meniscus and had surgery. The clinician opined it was at least as likely as not that the Veteran's injuries in the military are responsible for his current pain and arthritis in his knee. The clinician noted diffuse arthritic changes, and the Veteran complained of recurrent knee pain. The examiner noted he reviewed the Veteran's active duty medical records and opined the in-service injury could in his case result in chronic arthritis and pain. A December 2013 VA examiner reported that he had reviewed the file however there were no orthoscopy surgery records available for review. The examiner noted moderate degenerative changes. Overall the examiner noted the Veteran's arthritis was less likely than not caused by or the result of an in-service injury because the physical examination in February 1971 was normal and degenerative arthritis is an natural condition with progressive changes in cartilage. In the instant case, the Veteran has a diagnosis of right knee arthritis See, e.g., April 2011 private opinion. Hickson element (1) is accordingly met. Turning to in-service injury, upon review of the record, the Veteran has a notation of a right knee sprain in service in October 1970 and Hickson element (2) is met. Regarding element (3), medical nexus, the question presented is whether there is a relationship between the Veteran's current right knee arthritis and his in service injury. The Board finds that the April 2011private clinician's opinion is highly probative as the clinician noted that he reviewed the Veteran's service treatment records and had treated him since 2006 and noted his consistent complaints of knee pain. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). When presented with conflicting evidence, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App 171 (1991). In comparing the probative value of the April 2011private opinion against the opinion provided by the VA examiner, the Board finds that the evidence is largely in equipoise as to whether the Veteran's right knee disability was caused by service. Neither examination discussed the Veteran's 1972 meniscal surgery. While the negative opinion noted no nexus due to the Veteran's normal separation examination and natural aging, the Board finds that the private opinion takes into account the Veteran's service treatment records, lay statements regarding his injuries in-service, and consistent complaints of pain, and relates the Veteran's current arthritis condition specifically to his injury in service. Even though the Veteran had a work injury following service, he reported in treatment records and examinations at that time that he had knee pain and that his knee gave out during the time period between service and prior to his 1972 work injury, which he was competent to report. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a result, the Board finds that the evidence from the opinions by the VA examiner and the private clinician are substantially in equipoise. They are well reasoned, yet reach conflicting conclusions. In such situations, VA regulations state that the benefit of the doubt will be afforded to the Veteran. 38 C.F.R. § 3.102 (2017). Accordingly, service connection for the right knee is warranted, and the appeal is granted. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for a right knee disability is reopened. Entitlement to service connection for right knee arthritis is granted. ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs