Citation Nr: 18147604 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-46 083 DATE: November 6, 2018 ORDER The petition seeking to reopen a claim for service connection for a left knee disability is granted. Entitlement to service connection for a left knee patellofemoral disability is granted. FINDINGS OF FACT 1. An unappealed December 2005 rating decision that reopened but continued to deny service connection for a left knee patellofemoral syndrome disability is the last final decision on the matter. 2. Evidence received since the December 2005 rating decision raises a reasonable possibility of substantiating the service connection claim for a left knee patellofemoral disability. 3. Competent medical evidence shows a current patellofemoral diagnosis and the evidence is at least in equipoise as to whether there is a nexus between the Veteran’s current left knee patellofemoral disability and his in service left knee injury. CONCLUSIONS OF LAW 1. The December 2005 rating decision denying service connection for a left knee patellofemoral disability is final. 38 C.F.R § 3.7105 (c) (2012); 38 C.F.R §§. 3.104, 3.105 (a), 20.302, 20.1103 (2017). 2. The additional evidence received since the December 2005 rating decision is new and material, and the claim for service connection for a left knee patellofemoral disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R § 3.156 (2017). 3. The criteria for entitlement to service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§§ 3.102, 3.303 (b), 3.304 (d), 3.307, 3.309 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1991 to November 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida which declined to reopen a previously denied service connection claim for left knee disability. In April 1996, the RO awarded service connection for left knee scar evaluated at 0 percent effective November 15, 1995. Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must determine on its own whether new and material evidence has been submitted to reopen the claims of service connection for a left knee disability. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) New and Material Evidence The appeal seeking to reopen a claim for service connection for left knee patellofemoral disability is granted. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513   (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in an April 1996 rating decision, the RO denied entitlement to service connection for left knee disability finding that there was no evidence that a disability existed. Thereafter, in April 2001, the Veteran filed a request to reopen the claim for service connection for left knee disability. In April 2002, the RO reopened the claim for service connection for a left knee disability. However, the RO continued to deny the Veteran’s claim finding that the new and material evidence submitted by the Veteran failed to provide a nexus between the left knee laceration suffered in-service and the current diagnosis of left knee patellofemoral syndrome. In response to the Veteran submitting additional medical evidence, the RO issued another rating decision in December 2005. In the December 2005 rating decision, the RO denied the Veteran’s service connection claim for left knee disability finding that the evidence failed to show an objective finding of a left knee disability. The RO stated that the left knee x-rays taken in 1996 were normal. The evidence considered at the time included service treatment records (STR), treatment reports, and a VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the December 2006 rating decision became final. See 38 U.S.C. § 7105 (d) (3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156 (a)-(b), 20.302, 20.1103. Relevant evidence received since the December 2005 denial of the claim includes a private medical examination and lay assertions from the Veteran. This evidence, specifically the private opinion, relates to the unestablished element of a nexus in the prior denial. The additional evidence received since the December 2005 denial is therefore new and material. The criteria for reopening the claim for service connection for a left knee condition are therefore met. Service Connection The Veteran contends that service connection is warranted for a left knee disability as his left knee injury is a result of a fall that occurred while he was playing football in the United States Army. The Veteran states that he did well after a few months of physical therapy but over the past several years his pain has gotten worse. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active military, naval, or air service. 38 U.S.C § 1110, 38 C.F.R §§ 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303 (d). Service connection requires evidence of (1) an in- service disease or injury; (2) a current disease or disability; and (3) a nexus between the in-service event and the current disease or disability. Shedden v. Principi, 381 F.3d 1163 (Fed Cir. 2004). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim where there is an approximate balance of positive and negative evidence. Id at 1287 (quoting 38 U.S.C § 5107 (b)). The VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C. § 1154 (a). The Veteran seeks service connection for a left knee patellofemoral disability. The medical evidence shows that the Veteran was diagnosed with patellofemoral disability in the left knee. See VA treatment records dated February 2001. Therefore, the first element required for a service connection claim, the existence of a present disability, is met. Additionally, with regard to the second element, in-service disease or injury, the Veteran’s STRs dated in June 1991 indicate that the Veteran was discharged from the hospital after having reconstructive surgery of his left knee. The discharge notes state that the Veteran suffered a deep laceration of his left knee and the Veteran was restricted from field duty for three weeks following surgery. Therefore, the second element for a service connection claim is met as there is evidence of an in-service injury. Thus, the issue is whether there is a nexus between the Veteran’s current left knee patellofemoral disability and his in-service left knee injury. Shortly after the Veteran’s release from service, during a January 1996 VA examination, the Veteran complained of left knee pain. The VA examiner concluded that although the Veteran complained of left knee pain and has had surgery to repair the torn ligament, the left knee appeared to be quite normal and has good function. In February 2001, the Veteran was afforded a VA general surgery consultation, which included a magnetic resonance image (MRI) and x-rays. The Veteran’s x-rays were unremarkable. The MRI showed some evidence of mild cartilaginous changes on the lateral femoral condyle, on the medial portion, and on the patella of the left knee. The examiner diagnosed the Veteran with patellofemoral syndrome. In the Veteran’s statement in support of claim dated June 2005, the Veteran asserted that he continues to experience stiffness and cracking in his left knee. The Veteran further stated that he must do continued flexibility exercises either sitting or standing. In January 2013, the Veteran underwent a VA examination during which he reiterated that his left knee disability was due to his left knee injury in service. The examiner determined that there is no medical nexus between the current left knee disability and service. The examiner essentially stated that the 1991 injury had healed without residuals because an August 1994 STR shows that he was able to run and play football again. The examiner further stated that the Veteran’s diagnosis of patellofemoral syndrome was not the same as, or related to the Veteran’s left knee injury in-service. In an October 2013 private medical opinion, Dr. R., identified as an orthopedic surgeon, stated that the Veteran’s current medical condition is directly linked to his injury in service. He further stated that, at the time of the fall, the Veteran suffered a laceration over the patella tendon and although the laceration has healed, the tendon remains inflamed. Dr. R. wrote, “the tendonitis has progressed somewhat over time and is now causing a patellofemoral syndrome which may need to be addressed in the future.” In July 2016, Dr. R. submitted another opinion stating that the Veteran has a tear of his left medial meniscus. Dr. R. wrote, “while in the military service he had significant problems with his left patella and I believe that he most likely had damage to the medial meniscus at this time while in service.” Dr. R. opined that the patella symptoms overrode the meniscal symptoms and most likely is the reason the meniscus problem was not discovered. He further stated that surgery is necessary and will be accomplished in the near future. On review, the Board finds that the probative evidence supports a finding that the Veteran’s left knee disability is related to his military service. In so finding, the Board first finds that, although the Veteran as a layperson is not competent to relate his current knee disability to service, he is competent to report having had left knee symptoms in service and thereafter. Moreover, the Board affords the October 2013 and July 2016 private medical opinions significant probative weight. Dr. R. specifically determined that the left knee symptoms the Veteran currently experience are consistent with the left knee problems he experienced while in service. Dr. R. wrote that the Veteran’s left knee disability is “unequivocally linked to that injury and is readily apparent.” Dr. R. opined that the large scar immediately over the patella tendon is causing the Veteran’s symptoms. Dr. R. explained that the Veteran’s patella symptoms overrode the meniscal symptoms and that this was most likely the reason the meniscus problem was not discovered. The report indicates that the Veteran was examined, as well as the extent of the examination, and it provided supporting clinical data. Claiborne v. Nicholson, 19 Vet. App 181, 186 (2005). To the contrary, the Board finds the January 2013 VA examiner’s opinion inadequate to decide the claim. For instance, this opinion does not provide sufficient rationale and appears to have not considered the Veteran’s competent statements regarding continued left knee pain. Not only does the Board finds the opinion inadequate, but also of little to no probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). (Continued on the next page)   Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the probative evidence supports the Veteran’s claim, particularly given the medical evidence of a current left knee disability, the Veteran’s competent and credible complaints of continuous left knee pain since service, and the probative private opinions. For these reasons, the criteria to establish service connection for a left knee disability are met. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ross, Law Clerk