Citation Nr: 18142807 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-11 329 DATE: October 17, 2018 ORDER Service connection for a left knee disorder, to include patellofemoral pain syndrome is granted. FINDINGS OF FACT 1. A May 2006 rating decision denying the Veteran’s claim for service connection for a left knee disorder was not appealed, nor was new and material evidence received within one year. 2. Evidence received since the May 2006 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a left knee disorder. 3. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise as to whether the Veteran’s current diagnosed left knee disorder, to include patellofemoral pain syndrome, is related to a service-connected disability. CONCLUSIONS OF LAW 1. The unappealed May 2006 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.160(d)(1), 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim for service connection for a left knee disorder, to include patellofemoral pain syndrome. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria to establish service connection for a left knee disorder, to include patellofemoral pain syndrome have been approximated. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1976 to October 1992. This appeal is before the Board of Veterans’ Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. The Veteran filed a claim for service connection for a left knee disorder in November 2005. In May 2006, the claim was denied. In December 2011, the Veteran applied to reopen the left knee claim and sought service connection for a right knee disorder. In March 2013, the application as to the left knee was denied because the evidence was not new and material and the Veteran was granted service connection for a right knee disability. In April 2013, the Veteran submitted a Notice of Disagreement to reopen his left knee disorder claim. The Veteran underwent a VA examination in February 2016. New and Material Evidence To reopen a claim that was denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen this claim. New evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claims should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence in May 2006 included VA medical records and service treatment records (STRs), to include evidence of an April 1986 surgical excision of a left thigh abscess without residuals. The evidence also included treatment records from the Veteran’s private physician, to include a diagnosis of degenerative joint disease and complaints of bilateral knee pain. In March 2013, the Veteran was granted service connection for a right knee disability. In January 2017, the Veteran claimed that he has an abnormal gait due to his right knee disability and that his left knee disorder was, at least in part, due to his right knee disability. This evidence is new, as it was not previously considered in the prior final rating decision, and is material as it tends to substantiate the claim. The newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-118. Further, the RO implicitly reopened the Veteran’s claim in the February 2016 statement of the case and denied it on the merits. The Board reopens the Veteran’s claim. Therefore, he is not prejudiced by the Board’s actions. Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). 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). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran served as a jet engine mechanic during active duty service, which required him to frequently work on his knees. He contends that his left knee disorder began sometime in the 1980s during his active duty service and attributes his left knee disorder to overextending his knees or, in the alternative, as secondary to his right knee disability. The Veteran’s service treatment records indicate that in July 1988, in relation to complaints of right knee pain, the Veteran experienced an altered gait. In November 2012, the Veteran was afforded a VA examination in relation to his claim for a right knee disability. The VA examiner concluded that the Veteran experienced bilateral knee pain on movement, excess fatiguability, incoordination, and impaired ability to execute skilled movements smoothly. The examiner determined that the Veteran had bilateral tenderness or pain to palpitation for joint line or soft tissues. In February 2016, a VA examiner diagnosed the Veteran with bilateral patellofemoral pain syndrome but concluded that due to the lack of findings of an orthopedic disorder which would affect his left knee, it was unlikely that the Veteran’s left knee disorder was secondary to or aggravated beyond normal progression by the service-connected right knee disability. The examiner reported that current medical literature does not recognize patellofemoral syndrome of one knee as a causative factor for developing patellofemoral syndrome of the other knee. In February 2017, the Veteran’s private physician opined that the Veteran’s increasing left knee disorder is a consequence of his stride and gait as he compensates for his right knee pain; therefore, he puts more pressure on his left knee which causes joint damage. Service treatment records indicate that the Veteran had an altered gait during active duty service due to right knee pain (a manifestation of a now-current service-connected disability.) Additionally, the evidence contains competent and credible lay statements from the Veteran that his left knee pain began during active duty service and that he walks with an altered gait due to a right knee disability. While the Veteran is competent to report symptoms such as pain, because this requires only personal knowledge as it comes to him through his senses, he is not competent to provide a medical opinion as to the etiology of his left knee disorder. See Layno v. Brown, 6 Vet. App. 465 (1994). While the evidence contains conflicting opinions as to the etiology of the Veteran’s left knee disorder, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left knee disorder is proximately due to, or the result of, a service-connected disease or injury. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C. § 5107, provides that VA shall consider all information and lay and medical evidence, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of “reasonable doubt.” Evidence is in “approximate balance” when the evidence in favor or and opposing the veteran’s claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran’s claim are “nearly equal,” thus rendering any determination on the merits “too close to call.” Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence favoring and against the claim is in approximate balance and the claim will be granted. The present decision is based on the record in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel