Citation Nr: 18140612 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-10 001 DATE: October 3, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened; to that extent only, the appeal is granted. Service connection for a left knee disability is denied. FINDINGS OF FACT 1. In an August 2013 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a left knee disability; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. The evidence received since August 2013 relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability and raises a reasonable possibility of substantiating that claim. 3. A chronic left knee injury or disability was not shown in service. 4. A current left knee disability, diagnosed as osteoarthritis, tendonitis, and strain, was not shown to a compensable degree within one year of service; symptoms of a left knee disability were not continuous since service. CONCLUSIONS OF LAW 1. The August 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.3.09. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1970 to March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that a VA Form 21-22 was executed in April 2015 by Military Order of the Purple Heart (MOPH). It was not signed or dated by the Veteran – meaning that the appointment of MOPH was invalid. Although several documents submitted in 2015 and 2016 (including the August 2016 statement of the case) indicated that MOPH was the Veteran’s representative, the Board finds that such references were made in error. A valid VA Form 21-22 is not of record, and the Veteran has not expressed any further desire to be represented by MOPH. As such, the Board finds that the evidence of record reflects that the Veteran is currently pursuing his appeal pro se. The Veteran has not raised any 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 veteran 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). Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left knee disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that the RO previously reopened the Veteran’s claim in its September 2014 rating decision and then denied that claim on the merits. The reopened claim was denied again in a July 2015 rating decision. Nevertheless, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO’s action. See Jackson, 265 F.3d at 1369. “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). The Veteran’s original claim seeking compensation for a left knee disability was denied in an August 2013 rating decision because, at the time of the Veteran’s claim, the evidence did not demonstrate that the Veteran’s diagnosed left knee disability began during or was caused by service. The Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence added to the record since the March 1992 rating decision includes VA treatment records, a lay statement from a fellow solider, lay statements from the Veteran, and a July 2015 VA examination report and medical opinion. The Board finds that this evidence is new, as it has never previously been before agency decision makers, and material, as it relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds this evidence raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a left knee disability, and the claim is reopened. Entitlement to service connection for a left knee disability. The Veteran is seeking entitlement to service connection for a left knee disability. He claims that he injured his left knee when he slipped off an icy tank during maneuvers on active duty. He contends that his current left knee disabilities resulted from that in-service left knee injury. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately questioned and there is continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As arthritis is a chronic disease under 38 C.F.R. § 3.309(a), service connection based on continuity of symptomatology will be considered, in addition to the direct service connection theory of entitlement. Turning first to direct service connection, the Veteran has been diagnosed with a left knee disability. Specifically, a June 2015 VA examination diagnosed left knee osteoarthritis, left knee tendonitis, and left knee strain. Therefore, a current disability has been shown and the first element of direct service connection has been met. The Veteran’s service treatment records (STRs) are completely silent for any complaints, treatment, or diagnosis regarding a left knee injury while on active duty. His February 1970 enlistment examination shows that he entered military service with normal lower extremities. Similarly, his March 1972 separation examination shows normal lower extremities and indicates that he was “in a good state of health” when he was discharged from service. A May 2015 lay statement from PFC N.N., a fellow solider, indicates, “I witnessed [the Veteran] exiting a M-50 (tank) thru the T.C. Hatch carrying what appeared to be a radio. He slipped off the tank and fell between 2 tanks injuring his left leg and arm.” The Veteran’s account of in-service events is supported by the lay statement of his fellow solider. While the Board does not dispute these recollections of what the Veteran experienced in service, the STRs simply do not corroborate the Veteran’s assertion that he injured his left knee when he slipped off an icy tank on active duty. It logically follows that treatment of a left knee injury would be recorded in the STRs following the incident described by the Veteran and his fellow solider. However, no such record exists. Therefore, the second element of direct service connection in-service incurrence has not been met. Turning to the one-year presumption, the Veteran’s left knee osteoarthritis did not manifest to a compensable degree within a year of separation from service. The evidence shows that the Veteran was first diagnosed with left knee osteoarthritis during his June 2015 VA examination. In fact, the June 2015 VA examiner based his diagnosis of osteoarthritis on x-rays of the Veteran’s left knee that were taken. These x-rays showed bones that were normally aligned and intact; articular surfaces that appeared to be normal; very mild medial compartment joint space narrowing; and minimal calcification at the quadriceps attachment to the patella. The impression provided was “early osteoarthritis.” Not only is this the first reference to arthritis in the record, the Board finds that the June 2015 impression of “early osteoarthritis” suggests that it was not manifested to a compensable degree within one year of separation from military service. Consequently, the evidence of record does not support the claim based on the one-year legal presumption for certain chronic diseases such as arthritis. Next, it is important for the Veteran to understand that even if the Board assumes the Veteran injured himself as indicated above in service, there is simply no evidence of a problem from that injury to today. The record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). The evidence shows that the Veteran’s knee symptoms, including left knee pain, began as early as May 2013, more than 40 years after his separation from service. Likewise, the Veteran’s osteoarthritis was not diagnosed until June 2015, more than two years after pain was found on clinical evaluation. See May 2013 VA treatment record. Therefore, the preponderance of the evidence is against the claim for service connection based on continuity of symptomatology and the appeal is denied on this basis as well. Finally, the Board has considered the lay statements submitted by the Veteran. The Veteran is competent to report his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disability due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the June 2015 who examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Significantly, after reviewing the Veteran’s service/post-service medical records and evaluating the Veteran, the June 2015 VA examiner opined that the Veteran’s left knee disability was “less likely than not” incurred in or caused by the claimed in-service left knee injury because the STRs were silent for any left knee constitution and there were no objective medical records from the Veteran’s period of active duty service that could establish a direct relationship between the current left knee disability and military service. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. The Board notes that a May 2013 VA treatment record indicates that “patient has deployment related injury.” Furthermore, a VA treatment record received in February 2014 indicates “patient vividly remembers pain and difficulty flexing his knee since early 1971 when he was in Germany and slipped on ice as he came down from a tank during active duty” and “his knee injury could . . . very likely be caused by his active duty accident.” However, these statements do not satisfy the “nexus” element as they are based on the Veteran’s subjective statements and not on objective medical evidence. In any event, they are outweighed by the negative evidence in this case. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As service connection is not warranted, the appeal is denied. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel