Citation Nr: 18152666 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-55 218 DATE: November 23, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. Entitlement to service connection for a left knee disability is granted. FINDINGS OF FACT 1. A March 2013 rating decision denied service connection for left knee pain, status post anterior cruciate ligament (ACL) reconstruction; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the March 2013 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a left knee disability. 3. The Veteran’s pre-existing left knee disability increased in disability during his active military service, and the increase was not clearly and unmistakably due to the natural progress of the disease. CONCLUSIONS OF LAW 1. The March 2013 rating decision denying the claim of entitlement to service connection for left knee pain, status post ACL reconstruction is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1996 to March 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of entitlement to specially adapted housing, special home adaption grant, a total disability rating based on individual unemployability (TDIU), and service connection for bilateral foot arches with plantar fascitis were certified to the Board in April 2018 however, they will be addressed in another Board decision due to a pending hearing request, which has not yet been scheduled. New and Material Evidence 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing 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). The RO denied the Veteran’s claim for service connection for left knee pain, status post ACL reconstruction for lack of in-service aggravation in a March 2013 rating decision. The Veteran was informed of this decision in the same month, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the March 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the March 2013 rating decision constitutes new and material evidence in regard to the Veteran’s left knee disability claim. Specifically, the Veteran’s assertions in his September 2015 Notice of Disagreement (NOD) and November 2016 VA Form 9, that his pre-existing left knee disability was aggravated during basic training due to marching and running and that he started to experience left knee pain. Moreover, February 1996 and March 1996 service treatment records (STRs) note the Veteran’s complaints of left knee pain during training, which although were already of record are not listed as evidence considered by the RO at the time of the March 2013 rating decision. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a left knee disability and the claim is reopened. Service Connection 2. Entitlement to service connection for a left knee disability is granted. Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Generally, to establish service connection 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed.Cir.1994). Where a pre-existing disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran bears the burden of showing that the pre-existing condition worsened in service. See Wagner, 370 F.3d 1089. Until the Veteran shows an increase in disability occurred in-service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). The Veteran asserts that his pre-existing left knee disability was aggravated in service during basic training due to marching and running and that he began to experience left knee pain that has been continuous since that time. See March 2013 VA examination report, September 2015 NOD, and November 2016 VA Form 9. The Veteran has current diagnoses of status post left knee ACL reconstruction, left lateral meniscectomy and degenerative joint disease of the left knee. See March 2013 VA examination report. Thus, element one is met. The Veteran’s STRs show that on his August 1995 entrance examination, left knee ACL repair was noted and he was found not qualified to enter service. Thus, the presumption of soundness does not attach with respect to this disability. 38 C.F.R. § 3.304(b). Because the presumption of soundness does not apply, the Veteran bears the burden of showing that the pre-existing condition worsened in service. See Wagner, 370 F.3d 1089. Here, the Veteran has established that his left knee disability increased in disability during service. First, following his disqualifying August 1995 entrance examination, the Veteran underwent an examination in September 1995. The examiner indicated that since his ACL reconstruction surgery, the Veteran has done extremely well including resuming all of his usual activities and sports with no hesitation to participate in any athletic activity, has no pain with weather changes, and there has been no redness, swelling, heat, locking, or feeling impending giving away. Examination revealed full flexion and extension of the left knee; no tenderness to palpation over an anterior scar which is freely movable; no crepitus; patella apprehension is absent; negative Drawer’s sign; no pivot shift; McMurray’s is absent; and no popliteal masses. The examiner did not note any degenerative changes and x-rays showed no evidence of loosening of the fixation devices in the distal femur and proximal tibia. Lastly, the examiner noted the Veteran should be able to withstand vigorous activities. As a result, the Veteran was approved for a medical waiver for entry into service. See September 1995 VA examination and medical waiver. Subsequently, February 1996 and March 1996 STRs show the Veteran’s complaints of left knee pain during training, decreased range of motion in flexion and extension, and degenerative changes. Specifically, the February 1996 examination report noted the Veteran’s complaints of left knee pain during training; X-rays revealed degenerative joint disease in his left knee; he was unable to extend his knee to zero degrees; and flexion was recorded between 15 and 120 degrees. See February 1996 STR. Additionally, the March 1996 examiner noted the Veteran’s complaint of left knee pain for one week, that he has pain with any running or marching, and that after arrival in the military his pain has been aggravated by “the same type of activities.” Examination revealed no further injury or paresthesia since arrival in the military; a range of motion between 15 and 120 degrees flexion; no erythema, mass, or deformity; no instability to varus or valgus stress; negative pivot, Lachman’s, McMurray’s, and Drawer’s tests; and radiographs demonstrated osteophytes consistent with osteoarthritis. See March 1996 STR. Thereafter, the Veteran was found unfit to complete basic training, placed on L2 profile, and recommended for discharge from the military. See March 1996 Recommendation attached to the examination. Based on the totality of this evidence, the Veteran has satisfied his burden of establishing an increase in disability during service, and the presumption of aggravation is triggered. Moreover, the Board cannot find that the increase in disability was clearly and unmistakably the result of the natural progress of the disease. While there is a medical opinion of record that states that the Veteran’s left knee disability was not aggravated by service and was increased due to the natural progression of the pre-existing injury, the March 2013 VA examiner did not address the above-cited relevant STRs which suggest aggravation during service or the Veteran’s lay statements that he experienced left knee pain during training due to running and marching, thus his opinion is inadequate and of no probative value. Accordingly, (Continued on the next page)  as the high evidentiary standard required to rebut the presumption has not been met in this case, service connection is warranted for a left knee disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel