Citation Nr: 18151621 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-28 926 DATE: November 19, 2018 ORDER The Veteran has presented new and material evidence to reopen his claim for a left and right knee disability. Entitlement to service connection for degenerative joint disease of the left knee is denied. Entitlement to service connection for degenerative joint disease of the right knee is denied. FINDINGS OF FACT 1. Service connection for a left and right knee disability was most recently denied in a June 2007 rating decision because there was no nexus between his injury and service and the Veteran did not provide evidence of continuity of symptoms; the Veteran did not appeal this decision and it became final. 2. The evidence received since the June 2007 rating decision was not previously considered by agency decision makers, is not cumulative or redundant of evidence, addresses a previously unestablished fact, and it raises the reasonable probability of substantiating the Veteran’s claim. 3. The evidence is insufficient to show that the Veteran’s degenerative joint disease in the left and right knees is related to service, manifested to a compensable degree within one year of separation, or demonstrated a continuity of symptomatology since separation. CONCLUSIONS OF LAW 1. The June 2007 rating decision denying service connection for bilateral knee problem is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the June 2007 decision in support of the claim of service connection for a low back condition is new and material; thus, the claim is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for service connection for degenerative joint disease of the left knee have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.310. 4. The criteria for service connection for degenerative joint disease of the right knee have not been satisfied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from May 1968 to May 1971. This matter appears before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision. The Veteran has filed a Notice of Disagreement (NOD) on another claim which is still being reviewed by the Regional Office (RO); consequently, it will not be adjudicated in this decision. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on October 4, 2018. However, the appeal for the matters listed above has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. New and Material Evidence The Veteran has filed a request to reopen his claim for knee and lower leg pain. Regardless of the actions of the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. 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). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S. C. § 5108. “New evidence” means existing evidence not previously submitted to agency decision0makers. “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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). At the time of the June 2007 rating decision, the evidence of record included: the Veteran’s DD-214; the Veteran’s service treatment records; and a May 2007 VA examination. In October 2014, the Veteran requested that VA reopen his previously denied claim. Records associated with the claims files since the June 2007 rating decision include VA treatment records from February 2012 to November 2014; an October 2014 VA examination; and a December 2014 Disabilities Benefits Questionnaire (DBQ). The VA treatment records, October 2014 VA examination, and December 2014 DBQ are all new evidence because none of it was previously considered by the RO’s June 2007 rating decision. Additionally, the VA treatment records are not material because they do not demonstrate an unestablished fact necessary to substantiate the claim. The VA treatment records show the Veteran has a diagnosis of degenerative joint disease in his left and right knees, which has been previously established. The October 2014 VA examination and December 2014 DBQ are material. They both relate to an unestablished fact necessary to substantiate the claim. The VA examination and DBQ relate to the medical nexus needed for service connection claims. Accordingly, new and material evidence has been received sufficient to reopen the Veteran’s claim to entitlement to service connection for degenerative joint disease in his left and right knee. 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. § 1101; 38 C.F.R. § 3.303(a). 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. 38 U.S.C. § 1101; 38 C.F.R. § 3.303(a). In addition, when certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year of separation from active service, they are presumed to have been incurred during active service, even though there is no evidence of such diseases during service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For purposes of this decision, the Board will assume that the Veteran’s peripheral neuropathy qualifies as an “other organic disease of the nervous system” for purposes of 38 C.F.R. § 3.309. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease manifested in service. See 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Entitlement to service connection for degenerative joint disease of the left knee and right knees The Veteran contends that he has had bilateral knee pain since service. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Arthritis is often referred to as “degenerative joint disease.” Although degenerative changes are not specifically referenced as a chronic disease in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), the Court has long recognized that degenerative joint disease and degenerative changes denote the presence of arthritis. See Greyzck v. West, 12 Vet. App. 288, 291 (1999). The Board concludes that, while the Veteran has degenerative joint disease in his left and right knees, it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with degenerative joint disease until May 2007, decades after his separation from service and decades outside of the applicable presumptive period. Service connection for degenerative joint disease may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative joint disease in his left and right knees and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The December 2014 VA examiner opined that the Veteran’s degenerative joint disease is not at least as likely as not related to an in-service injury, event, or disease, including pain during basic training. The rationale was the passage of time and the Veteran’s occupation post service. The Veteran’s diagnosis came decades after separation from service, and the Veteran had worked in a factory for 35 years where standing, bending and stooping were required throughout his shifts. (Continued on the next page)   While the Veteran believes his degenerative joint disease is related to an in-service injury, event, or disease, including pain during basic training, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, service connection for degenerative joint disease is both the left and right knees is unwarranted because there is no medical nexus. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. Fournier, Law Clerk