Citation Nr: 1803483 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-25 436 ) 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 received to reopen a claim of service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a claim of service connection for a right hip disorder. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served honorably on active duty from August 1988 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen the previously denied right knee and right hip service connection claims. In August 2017, the Veteran testified at a hearing in St. Petersburg, Florida, before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. The evidence received since the June 1997 rating decision relates to unestablished facts necessary to substantiate the claims of service connection for a right knee and right hip disorder that may be attributable to active service. 2. Regarding the Veteran's right knee arthritis, the Veteran has demonstrated a continuity of symptomology since service. 3. Regarding the Veteran's right hip arthritis, the Veteran has demonstrated a continuity of symptomology since service. CONCLUSIONS OF LAW 1. New and material evidence was received on the claims of service connection for a right knee disorder and a right hip disorder; thus, these claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2016). 2. Service connection for right knee arthritis is established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309 (2017). 3. Service connection for right hip arthritis is established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Claims As explained above, in December 2011, the agency of original jurisdiction (AOJ) denied the Veteran's service connection claims for right knee and right hip disorders. The AOJ also determined that new and material evidence had been received sufficient to reopen the Veteran's previously denied service connection claims for right knee and right hip disorders. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen the claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Furtherr, there is a question of which prior decisions were final to determine whether they were reopened. In June 1997, the AOJ issued a rating decision denying the Veteran's claims for right knee and right hip conditions. The Veteran did not appeal this decision and he also did not submit any relevant evidence or argument within 1 year of the June 1997 rating decision which would render it non-final for VA adjudication purposes. 38 C.F.R. § 3.156; See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement, but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). In December 2002, the Veteran filed a claim and requested that his "service-connected disability (traumatic arthritis) be re-evaluated. [His] problems have increased in severity." The Veteran also filed a statement in July 2003, stating that his knees and hips had gotten worse. In January 2004, the AOJ denied the Veteran's claim "for service connection for a right knee condition...because the evidence submitted is not new and material." Notably, the AOJ did not make a determination on the Veteran's right hip condition. While the Veteran did not appeal this determination, he submitted new evidence within one year of the date of the rating decision. 38 C.F.R. § 3.156. Therefore, as the rating decision was non-final, the question of whether there is new and material evidence to reopen the claim of a right knee disorder was never finally adjudicated. Further, the rating decision did not consider whether there was new and material evidence to reopen the claim for Veteran's right hip disorder. Thus, the June 1997 rating decision is the last final determination on these claims. The claims of service connection for right knee and right hip disorders may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen these previously denied service connection claims on right knee and right hip disorders. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the previously denied service connection claims for right knee and right hip disorders are reopened. The last final determination for both claims is the June 1997 rating decision. The evidence before VA at the time of the prior final AOJ decision in June 1997 consisted of the Veteran's service treatment records, his post-service VA treatment records, and his lay statements. The newly received evidence includes additional VA and private outpatient treatment records and examination reports and additional lay statements from the Veteran. The Board notes that the evidence which was of record at the time of the prior final AOJ decision in June 1997 did not indicate that right knee and right hip disorders could be attributed to active service and did not address continuity of symptomatology. The newly received evidence suggests that the right knee and right hip disorders may be related to active service. The Board observes in this regard that the Court held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly received evidence is presumed credible for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the evidence submitted since June 1997 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to unestablished facts necessary to substantiate the claims of service connection for a right knee and right hip disorder and raises a reasonable possibility of substantiating these claims. Because new and material evidence has been received, the Board finds that the previously denied claims of service connection for a right knee and right hip disorder are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran testified that his right knee and right hip injuries are a result of his duties while in service. The Veteran testified that, on average, he jumped from airplanes 12 times per year. When he jumped, he typically had additional weight because he was carrying radio equipment. The Veteran also did forced marches with the same weight and at the same frequency. While in service, the Veteran injured his left ankle and, as a result, put more weight on his right side during the jumps and marches. In considering the Veteran's claims, the entire record was reviewed, including his testimony, service treatment records (STRs), and VA and private medical records. The Veteran injured his left ankle in-service. Throughout the Veteran's STRs, he does not indicate any pain on the right side of his body. However, on his separation examination, it is noted that he has mild crepitus in his bilateral knees and "arthritis" which is "secondary to jump stress in his right hip and knee." Given this, the Board finds that the second element of service connection, an in-service event, to be established. Shedden, supra. In an April 1997 VA examination, the Veteran complained of right knee and hip pain, although imaging and examination were within normal limits. From November 2003 through February 2004, the Veteran once again complained of right knee and right hip pain. At the outset of the treatment, in November 2003 and January 2004, a provisional diagnosis of traumatic arthritis was rendered. In February 2004, imaging showed mild degenerative changes in his right knee, but his right hip was normal. On objective examination, the Veteran's right hip was painful, but right knee was normal. The examiner concluded that the Veteran had "polyarthralgias most likely related to degenerative etiology" and discussed with the Veteran treatment for degenerative arthritis. In connection with the Veteran's present claim, the Veteran was afforded a VA examination in November 2011. The examiner reviewed the Veteran's STRs and other medical records. The VA examiner noted that the Veteran did not have current diagnoses of knee or hip arthritis; instead his diagnoses were right knee chondromalacia and right hip acetabular impingement. The VA examiner noted that if the Veteran had knee and hip pain in service, then clearly it would show up in the STRs, and that if he had arthritis at the time, then it would have shown up on future examinations. In conclusion, the examiner opined that it is less likely than not that the Veteran's knee and hip conditions were related to service. The Board gives this opinion little probative weight. The Veteran's STRs and medical evidence prior to this examination clearly show that the Veteran continued to complain of right knee and right hip pain and arthritis diagnoses were contemplated for years, even if not formally diagnosed. The Board notes that opinions from two private health care professionals are of record. The first is from N.H. a registered nurse. N.H. explains that the Veteran would land on his right leg to protect his left and that he would absorb the force of the landing on his right. In her opinion, these jumps are the root cause of the Veteran's right knee and hip issues. The Board gives this opinion probative weight because it considers the Veteran's lay statements. In August 2017, the Veteran's treating doctor, Dr. M., gave the opinion that it "is at least as likely as not to consider [the] reported [right knee and right hip disorder] [to be] related to service based on a review of his medical history. See clinic note for details." Upon review of the clinic note, Dr. M. gave a diagnosis of "right hip pain and right knee pain, both with mild arthritis." Dr. M. gives no additional rationale for his opinion. The Board gives the diagnosis great probative weight because it is consistent with the medical record; and, thus, the Board finds that the Veteran has established a current diagnosis of arthritis. Shedden, supra. However, the Board gives the opinion little probative weight as there is no explanation for his opinion. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence establishes that the Veteran's right knee arthritis and right hip arthritis is connected to service. The Board notes that while the Veteran's STRs are silent as to any treatment, diagnosis, or complaints of problems with the Veteran's right knee and right hip while in service, a note on the Veteran's exit examination does note right knee and right hip "arthritis." Further, relevant post-service treatment records reflect that the Veteran continued to complain of right knee and right hip pain and described it as "arthritis," even though imaging was mostly negative for degenerative changes. The Board notes that the Veteran has contended on his own behalf that his right knee arthritis and right hip arthritis is related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno supra, at 470. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's right knee arthritis and right hip arthritis and service to be complex in nature. See Woehlaert, supra. Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a connection between service and his right knee arthritis and right hip arthritis. However, the Board finds that the Veteran has established a continuity of symptomology for his complaints of right knee arthritis and right hip arthritis. He has consistently complained of arthritis symptoms since his time in service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Therefore, the third element of service connection, a nexus between the in-service event and the present disability, has been met. Shedden, supra. Based on the foregoing, the Board finds that service connection is warranted for right knee arthritis and right hip arthritis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER 1. New and material evidence was received on the claims of service connection for a right knee disorder and a right hip disorder; thus, these claims are reopened. 2. Service connection for right knee arthritis is established. 3. Service connection for right hip arthritis is established. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs