Citation Nr: 18151964 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-06 347 DATE: November 21, 2018 ORDER The appeal to reopen the claim of entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a left knee disability is denied. FINDING OF FACT 1. In an unappealed decision dated August 2011, service connection for a left knee disability was denied. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 3. The evidence is insufficient to show that the Veteran’s current left knee disability had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 1964 to June 1968. Service connection was originally denied in a July 1968 decision. The Veteran did not appeal the decision, and it became final. A May 2007 rating decision the denied service connection for a left knee disability. After a special review of the claims file, the regional office (RO) reconsidered the claim and continued the denial in an August 2011 rating decision. The Veteran did not appeal the decision and it became final. In July 2012, the Veteran filed a new claim for service connection for a left knee disability. In a December 2012 rating decision, the RO reopened the claim and denied it on the merits. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The Veteran’s left knee disorder was first denied in a July 1968 decision based on a finding that the Veteran did not have a left knee diagnosis. In May 2007 and August 2011 rating decisions, the Agency of Original Jurisdiction (AOJ) reopened the claim and denied it on the merits based on a finding that the Veteran’s left knee disability was not related to service. Despite the determination reached by the RO with respect to the reopening of the Veteran’s claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Veterans Appeals (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Evidence submitted since the Veteran’s request to reopen includes a December 2012 VA examination report. The evidence is new in that it was not previously considered. It is also material insofar as it addresses the Veteran’s current left knee disability and whether it is related to service. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a left knee disability is reopened. 2. Entitlement to service connection for a left knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 was incurred in service. 38 C.F.R. § 3.303(d) (2017). For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran has current left knee diagnoses of left knee strain and left patellofemoral knee pain syndrome. See December 2010 VA Examination Report; December 2012 VA Examination Report. The issue that remains disputed is whether the Veteran’s left knee disorder had its onset in service or is otherwise related to service. The preponderance of the evidence is against the claim. A July 1965 service treatment note shows the Veteran reported falling one month earlier. An x-ray showed a normal left knee. A November 1967 service treatment note indicates the Veteran reported occasional pain in the left knee after an injury involving a fall. The diagnostic impression was slight ligament strain or posttraumatic arthritis. A May 1968 separation examination showed normal lower extremities. VA treatment records prior to 2008 show general reports of knee pain with no specific diagnosis. An October 2008 VA treatment note shows the Veteran sought treatment after getting in a motor vehicle accident. The Veteran reports pain in the left temple, left shoulder, elbow, wrist, left knee pain. Veteran showed good range of motion in knees. During a December 2010 VA examination, the Veteran reported his knee pain began in service when he slipped on wet stairs. He reported he now has pain in both knees and that his condition has gotten progressively worse. He denied treatment for the condition. Left knee x-ray results show no acute fracture or dislocation. Joint spaces appeared preserved medial and laterally without osteophytosis. Patellofemoral compartment showed mild enthesopathy at the quadriceps tendon attachment but is otherwise unremarkable. Bone mineralization appears normal and no focal bone lesions were seen. Soft tissues showed no focal abnormality. The Veteran showed a diagnosis of left knee strain. The examiner opined that the Veteran’s current left knee disorder was less likely than not related to his in-service left knee injury. The examiner reasoned that the Veteran has pain in both knees and radiographically the x-rays for both knees are similar. The examiner further noted that if there were any significant trauma to the left knee, she would expect to see some arthritic changes by now in the left greater than the right. The examiner indicated that she looked through the claims file and service treatment records several times and did not see a left knee injury. The examiner further stated that the Veteran’s separation physical and reenlistment physical did not document any joint problems. She reported his medical record out of service simply notes that the Veteran had lower extremity pain but does not verify the incident in service. As previously noted, the Veteran’s service treatment records show two complaints of left knee pain. Although the examiner seemingly overlooked the left knee treatment notes in the service treatment records, the examiner accepts the Veteran’s reports of injury as true in rendering her opinion. As such, the examination and opinion are probative. The Veteran underwent an additional VA examination in December 2012. He showed a diagnosis of patellofemoral knee pain syndrome of the left knee. Regarding the history of the Veteran’s knee disability, the examiner noted that the Veteran’s 1998, 2000, 2007, and 2010 x-rays were all normal. There was no diagnosis established during these visits. There were also no MRIs or orthopedics referrals in the Veteran’s VA treatment records. Imaging studies were negative for degenerative or traumatic arthritis. The examiner opined that the Veteran’s current left knee condition was less likely than not related to his in-service injury. The examiner reasoned that the Veteran’s diagnosis in his 1967 service treatment record was of possible strain versus arthritis. Arthritis has never been found on a series of x-rays over the past 15 years. The Veteran’s current left knee disability of patellofemoral pain syndrome is not the same as his in-service ligament strain. The Board finds the December 2010 and December 2012 VA examinations and opinions probative to the question at hand. The examiners considered the claims file and the Veteran’s contentions regarding the onset of his left knee symptoms. The opinions were definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the Veteran’s argument that the VA examiner did not provide and etiology for the Veteran’s left knee disability. See October 2018 Appellate Brief. However, the examiner is not required to provide an etiology for the Veteran’s current knee disability in rendering an opinion. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the current left knee disability did not have its onset in service and is not related to service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s current left knee disability is related to service requires medical expertise to determine. There is also no basis for service connection on a presumptive basis because the Veteran does not show a diagnosis of left knee arthritis at any time. See 38 C.F.R. §§ 3.307, 3.309. The most probative evidence of record shows that the Veteran’s left knee disorder is not related to service. Accordingly, entitlement to service connection for a left knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel