Citation Nr: 18149467 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-35 266A DATE: November 9, 2018 ORDER As new and material evidence to reopen a claim for service connection for a right knee disability has been received, the claim is reopened. Service connection for right knee osteoarthritis is granted. FINDINGS OF FACT 1. An August 2006 rating decision denied service connection for a right knee condition. The Veteran did not appeal that rating decision and new and material evidence was not received within one year of the decision. 2. Evidence received since the August 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for right knee osteoarthritis and raises a reasonable possibility of substantiating the claim. 3. The evidence is approximately evenly balanced as to whether the Veteran’s right knee osteoarthritis is related to service. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied the claim for service connection for right knee is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the August 2006 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a right knee disability have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1131, 1154 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1976 and from November 1976 to December 1993. This appeal comes before the Board of Veterans’ Appeals (Board) from a an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which reopened the claim for service connection for a right knee disability. Nonetheless, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Application to reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). By way of background, the Veteran’s initial claim for service connection for right knee patellofemoral syndrome was denied in an August 1994 rating decision. The Veteran was notified of the denial in that same month, but he did not appeal this issue, as indicated above. The Veteran filed an application to reopen a claim for a knee condition in March 2006, and the RO denied his application to reopen on the basis that no new and material evidence was received in the August 2006 rating decision, but he did not appeal this issue. The Veteran did not submit new and material evidence within the one-year appeal period, and no additional service records have been received at any time pertinent to the previously disallowed claims for service connection, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)). The denials, therefore, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen a claim for a back condition in April 2014, and the RO denied his application to reopen on the basis that no new and material evidence was received in the April 2015 rating decision, currently on appeal. The evidence received since the August 2006 rating decision includes a February 2014 private medical opinion that indicates that the Veteran’s right knee disability is a result of his service and secondary to his service-connected back and left knee disabilities during service. As this evidence relates to the bases for the prior denials and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a right knee disability, reopening of the claim is warranted. Service Connection Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first 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). In relevant part, 38 U.S.C. 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The probative evidence reflects that the Veteran has a current knee disability diagnosed as osteoarthritis that is etiologically related to his active service. A December 1974 service treatment record (STR) reflects the Veteran injured his right knee playing ball. A September 1975 STR indicated that he twisted his right ankle and right knee with no significant finding. A February 1981 STR notes the Veteran reported both of his knees were hurting with a diagnosis of bilateral patellofemoral syndrome and quad strengthening was advised. An August 1983 STR notes complaints of right knee pain. The Veteran was released to a home program. November 1983 STRs notes pain in knees for the past four years. The Veteran reported pain in knees and his right knee began hurting after P.T. three weeks earlier. A diagnosis of early chondromalacia right patella was noted and the Veteran was told to restrict activity to what is comfortable. An October 1990 STR notes complaints of reoccurring right knee pain, swelling, and decrease in range of motion. An October 1997 VA consultation sheet reflects the Veteran reported increase in pain in both knees, with pain greater in the left. A June 2002 VA treatment record noted degenerative joint disease of the bilateral knees. A July 2007 VA treatment record noted the Veteran reported right knee pain. An October 2008 VA treatment record noted degenerative joint disease in the right leg. In a February 2014 VA opinion, a private physician opined that the Veteran’s right knee condition is as likely as not secondary to his back, hip, and left knee arthritis. He noted that the Veteran’s records were reviewed and that he had treated the Veteran and has familiarity with his medical history. He noted that the Veteran injured and sustained harm in or about August 1973 and that the results of the injury have been long lasting and his condition had worsened as he got older. The physician noted the Veteran’s right knee arthritis was increasing in pain and swelling. He opined that there is a medical nexus between the Veteran’s active duty service connected injuries and his current right knee disability. In a March 2015 VA examination report, the Veteran reported an onset of right knee and lower leg pain in 1978, several months after his left leg surgery. He indicated that he was told that the extra pressure placed on his right knee was the cause of the pain. The diagnosis was subacute inferior patella fracture with osteoarthritis right knee. The examiner opined the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner noted the Veteran’s right knee complaints in service and explained that there were no subsequent medical records denoting a knee condition until 2013 when it was noted that he wore knee braces for both knees and the absence of knee issues between 1984 and 2007, to show worsening of the right knee condition due to the left knee condition. A November 2015 private treatment record notes the Veteran complained of bilateral knee pain. The physician notes the Veteran had chronic bilateral knee pain associated with deformity with similar complaints of right knee in service requiring profile and physical therapy treatment, as noted in STRs. Regarding nexus, the Board acknowledges that the March 2015 VA examiner’s opinion is negative. However, the Board does not find the opinion probative because the examiner relied heavily on the lack of a diagnosis of a knee condition until 2013. Although the examiner acknowledged some of the clinical evidence of right knee symptoms in service, the examiner, discounted, without explanation, the Veteran’s reports of continuous right knee symptoms in the years since service, as noted in medical treatment records and lay statements. Furthermore, the examiner did not provide an opinion as to secondary service connection and failed to address the February 2014 private opinion. The Board thus finds the February 2014 private opinion more probative than the March 2015 VA examiner’s opinion. It is consistent with the Veteran’s consistent and credible statements that he experienced right knee symptoms in and since service, as well as with treatment records showing consistent reports of knee pain in October 1997, June 2002, January 2007, July 2007, October 2008, January 2009, and April 2009. In sum, the evidence reflects that the Veteran experienced right knee symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current degenerative arthritis/osteoarthritis of the right knee. In light of this evidence and the April 2014 opinion, which indicates the Veteran incurred a right knee disability due to his service, to include his service-connected back and left knee disabilities during service, the evidence is at least evenly balanced as to whether the evidence indicates that the current right knee osteoarthritis had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed osteoarthritis of the right knee is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell