Citation Nr: 18152759 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-38 920 DATE: November 27, 2018 ORDER The Veteran’s request to reopen his claim of entitlement to service connection for right knee disability is granted. Entitlement to service connection for right knee disability is granted. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for right knee disability was denied in unappealed rating decisions of October 1987, November 2002, December 2010 and December 2013. 2. The evidence received after the December 2013 rating decision relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. 3. A right knee disorder was not noted on the Veteran’s entrance examination; the right knee disability clearly and unmistakably preexisted service, but it is reasonably debatable as to whether the right knee disorder was aggravated during service. CONCLUSIONS OF LAW 1. The October 1987, November 2002, December 2010 and December 2013 rating decisions are final. 38 U.S.C. §§ 5103, 5103A, 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2018). 2. The criteria for reopening the claim of service connection for right knee disability have been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1131, 1132 (2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to February 1987. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran has waived his right to a hearing. Service Connection 1. New and Material Evidence for Right Knee Disability Legal Principles Rating actions from which appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A perfected appeal consists of, inter alia, a timely filed NOD and a subsequent substantive appeal. 38 C.F.R. § 20.200. If the Veteran does not file a NOD with the rating action, such action becomes final upon expiration of a statutorily prescribed period. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Final actions may not be reopened, reconsidered, and allowed upon the same factual basis. 38 U.S.C. § 7104(b). The VA, however, shall reopen the claim and review its former disposition when the new and material evidence is introduced into the record. § 5108. “New evidence” refers to the evidence that has not been previously reviewed by VA adjudicators. 38 C.F.R. § 3.156(a). The evidence must be new in relation to the last final disallowance of the claim on any basis, including the basis that there was no new and material evidence since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). “Material evidence” means the existing evidence that, either by itself or when considered with previously available evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of records at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. 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). The Shade Court held that the phrase “raises a reasonable possibility of substantiating the claim” in the language of § 3.156(a) is “enabling rather than precluding reopening.” Shade, 24 Vet. App. at 117. In determining whether this “low” threshold is met, the Board should not limit its analysis to whether the newly received evidence relates specifically to the reason why the claim was last denied. Id at 118. Nor is such evidence is required to cure each previously unproven element of a claim. 38 C.F.R. § 3.156(a). The Board also must consider the newly received evidence in light of the entire record. Hickson v. West, 2 Vet. App. 247, 251 (1999). In cases, such as this, where the RO has granted the Veteran’s request to reopen his claim and then denied the claim on the merits, the Board must perform a two-step analysis. Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). First, the Board must independently determine whether the evidence submitted in support of the request to reopen the claim is “new and material.” 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence received since the last decision is new and material, the Board must reopen the Veteran’s claim and then proceed to the second step evaluating its merits. Cuevas, 3 Vet. App. at 546. Before proceeding to the second step, notwithstanding the RO’s prior treatment of the Veteran’s request to reopen his claim, the Board has an independent jurisdictional responsibility to determine whether a previously denied claim was properly reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Discussion Service connection for right knee disability was denied in unappealed rating decisions of October 1987, November 2002, December 2010 and December 2013. As the Veteran did not initiate an appeal of those decisions, and as none of the judicially created obstacles to finality apply, the Board finds that those decisions are final. The Board finds that new and material evidence was received in May 2015, when the Veteran submitted a positive medical opinion as to the etiology of his right knee disability. This opinion constitutes new evidence because the opinion postdates the December 2013 denial and thus was neither previously available nor reviewed by VA adjudicators. This new evidence is also material because medical opinions as to the etiology of disabilities are essential to establishing service connection. This opinion is not cumulative or redundant of any evidence of record since the opinion relates to an unestablished fact of the relationship between the Veteran’s claimed disability and his service. As such, this positive medical opinion also raises a reasonable possibility of substantiating the Veteran’s service-connection claim. Accordingly, the Board finds that the new and material evidence since the last rating action has been received. Therefore, the Board reopens the Veteran’s claim of entitlement to service connection for right knee disability and turns to the merits of the claim. ¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬2. Entitlement to Service Connection for Right Knee Disability The Veteran contends that he was found fit for military service and damaged his right knee in service beyond the confines of his preexisting right knee injury’s natural progression and therefore his disability should be service connected. Factual Background The Board has reviewed all lay and medical evidence on file and finds particularly probative the Veteran’s Service Treatment Records (STR), an August 1986 X-ray report, an August 1986 MEB report, a September 1986 Veteran’s lay statement, an October 1987 VA medical examination report, an October 2013 VA medical examination and opinion report, and the previously referenced 2015 private medical provider’s opinion. The Veteran’s STR reflect a July 1984 enlistment medical examination report which was reviewed and confirmed in October 1984. In the report, the examiner noted that the Veteran’s health was excellent and without any health issues. The STR further reflect multiple complaints of right knee pain recorded in August and November 1985, and then in April, May, and July 1986. In August 1986, one year after the initial complaint, the Veteran was referred for an X-ray of his right knee. While the X-ray image is not on file, the August 1986 X-ray report reveals a patella fracture annotated “(old).” At that time, the Veteran was referred for an orthopedic evaluation of his right knee. In August 1986, the Veteran was evaluated in the Orthopedic Clinic at Camp Lejeune Naval Hospital, where he was diagnosed with painful bipartite patella, right knee. The examination report notes that the pain began eight years ago following a hit in a football game. This left the Veteran with peripatellar pain which occasionally causing him to discontinue his recreational endeavors. The examiner opined that with the stresses of physical training the Veteran has had extreme peripatellar pain, preventing him from walking more than two hundred yards, running, or manual labor. The examiner further opined that past medical history and review of systems are noncontributory. The examiner concluded that the prognosis was poor. Based on that report, the Veteran was recommended to the MEB that subsequently medically discharged the Veteran from service in February 1987. Meanwhile, in a letter addressed to the MEB and signed by the Veteran in September 1986, the Veteran stated that his right knee pain began about eight years earlier during a football game in which he was hit in that knee. According to the Veteran, he was unaffected by that hit; he continued to exercise and play sports later in high school with no problems. Before boot camp, the Veteran ran three miles every other day. The Veteran further stated, “When I took my final physical in the MEPS Station, the doctors said that I was in 100% physical condition before going to boot camp.” According to the Veteran, while in boot camp, he had no problems with training and running every other day from three to four miles was no problem for him. In November, his knees especially the right knee started to cause pain. Seeking medical help, the Veteran went to sick call where a doctor said that it was nothing to worry about and gave his Motrin. Then, months later, his X-ray showed that his right knee patella was cracked. As a result, the Veteran could not even walk two hundred yards without having pain and could not even run the way he used to run. The October 1987 VA medical examination report reflects that the Veteran was admitted to a hospital for four days to evaluate the nature and etiology of his right knee disability. A VA examiner confirmed the chondromalacia, right patella with bipartite patella diagnosed in service in 1985. In the report, the examiner noted that in November 1985 during a 10-mile run the Veteran felt something pop in the right knee followed by pain and swelling. Then, the Veteran sustained a second injury to his right knee when he was running in July 1986. In October 2013, the VA again provided medical examination, after the Veteran was also diagnosed with osteoarthritis in this right knee in 2012. The report reflects that the VA examiner reviewed the Veteran’s VA claims file and examined the Veteran in-person. The examiner opined that the Veteran’s right knee disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by treatment for right knee chondromalacia patella (CMP) during service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. In the report, the examiner noted that the Veteran’s STR show a July 1984 enlistment examination with no complaints or diagnosis or treatment for a right knee condition. The examiner further noted that the STR also reflect a July 1986 X-Ray revealing an old patella fracture. Then, the examiner noted the STR further reflecting that in October and November 1985, as well as April, May, July 1986, the Veteran reported pain to the right knee for chondromalacia patella (CMP). As to the rationale, the examiner explained that signs of worsening of the Veteran’s right knee would include increase need for pain medication particularly, increase need for prescription pain medication and more frequent doctors/hospital visits regarding the right knee. In examiner’s opinion, these criteria have not been met by the Veteran’s circumstances. The examiner asserted that the Veteran would also have moderate or severe osteoarthritis (OA) of the right knee but X-ray findings show mild right knee OA and mild narrowing of the medial compartment. The examiner opined, based on the Veteran’s self-reported right knee injury while playing football and the August 1986 X-ray report revealing old patella fracture, that they have changed the microenvironment of the cartilage and have contributed to the development of the Veteran’s then-recently diagnosed OA of the right knee and according to medical literature this was a secondary OA resulting from preexisting injury. The examiner concluded that right knee OA was not aggravated beyond natural progression. In April 2015, a private medical provider reviewed the Veteran’s STR and medical history and opined that the Veteran’s right knee disability relates to service. Following the examination, the examiner opined that the Veteran had a minor injury prior to basic training which was exacerbated and worsened by the physical stress incurred in service. The private examiner further opined that Veteran’s right knee disability is possible long-term nature due to physical training in the military. Legal Principles Service connection will be granted for a disability resulting from a disease or injury incurred or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In determining whether a disability was incurred or aggravated during service, there is a legal presumption of soundness, meaning that every service member is presumed to enter service in sound health, apart from any preexisting disabilities noted during a service entry physical examination. 38 U.S.C. § 1111. The presumption applies when a Veteran has been examined, accepted, and enrolled for service, while that examination revealed no defects, infirmities, or disorders. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Only disabilities that are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). It follows that, so long as the Veteran was given an examination at entry into service, the only prerequisite for the presumption to attach is that such examination must be clear of any noted disabilities. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). This presumption may be rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). It is rebutted in cases where the evidence clearly and unmistakably shows that (1) the Veteran’s disability preexisted service and (2) that such disability was not aggravated therein. Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). “Clear and unmistakable evidence” refers to an evidentiary standard that is more demanding than clear and convincing and is much more formidable than the preponderance of the evidence. Vanerson v. West, 12 Vet. App. 254, 258 (1999). The courts have recognized that the clear and unmistakable is an “onerous” and “very demanding” evidentiary standard requiring the evidence to be “undebatable.” Laposky v. Brown, 4 Vet. App. 331 (1993). “To be undebatable” means that the evidence “cannot be misinterpreted and misunderstood.” Quirin, 22 Vet. App. at 396. In contrast to “clear and convincing” standard requiring a reasonable certainty as to the truth of the fact in controversy, “undebatable” means that no reasonable minds could differ as to the decision adversely affecting the Veteran. See Vanerson, 12 Vet. App. at 258-59. Further, a rebuttal of the presumption of soundness must involve an impartial and thorough review of the material evidence together with and in context of all other evidence of record. Id. at 259. Ultimately, the rebuttal of the presumption of soundness turns on whether the evidence, viewed as whole, clearly and unmistakably shows that the Veteran’s disability preexisted service and, if so, whether such preexisting disability was aggravated during service. Id. at 261. To rebut the presumption of soundness where the evidence shows that the disability clearly and unmistakably preexisted service, the lack of aggravation must be established by the evidence clearly and unmistakably showing either that the disability has not worsened during service or that any increase in the preexisting disability or disease was not beyond its natural progression. 38 U.S.C. § 1153. If the lack of aggravation is not clear and unmistakable, presumption of soundness is not rebutted and the Veteran’s claim is legally treated as-if a direct service connection. See Wagner, 370 F.3d at 1096. This means that, if a rating is awarded, no deduction for the degree of disability existing at the time of entrance will be made under 38 C.F.R. § 3.322, governing ratings of disabilities aggravated by service. Id. In other words, the lack of aggravation that is not clear and unmistakable essentially has the effect of converting the claim into one for service-connected disability. Id. Establishing service connection generally requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). In cases where the positive and negative evidence material to the matter at issue strike an approximately equal balance, the benefit of the doubt is accorded to the Veteran and thus the claim must be resolved in Veteran’s favor. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. Discussion A. Presumption of Soundness The Board notes that the Veteran was given a July 1984 physical examination at service entry and no disabilities or diseases were noted at that time. Accordingly, the presumption of soundness, unless rebutted by clear and unmistakable evidence, must attach here. In this case, the presumption of soundness is not rebutted because the evidence of record does not clearly and unmistakably show the lack of aggravation of the Veteran’s right knee injury which clearly and unmistakably preexisted service. The evidence of record clearly and unmistakably shows that the Veteran sustained an injury to his right knee during a school football game some years prior to his service. This finding is clearly and unmistakably supported by the evidence of record, including Veteran’s STR reflecting multiple sick-call notes, his September 1986 statement to the MEB, August 1986 MEB report, October 2013 VA medical examination report, and April 2015 private medical opinion. This evidence reflects that the Veteran made numerous consistent statements that his injury to the right knee occurred during a school football game prior to his service. The only material discrepancy raised by the record concerns the precise timing of the injury. Although imprecise, the timeline clearly and unmistakably falls somewhere between late seventies and early eighties, and thus the Veteran’s right knee injury predates his enlistment in 1985 by five to eight years. All reports date the injury to approximately eight years prior to service, except for one note made during Veteran’s sick call visit to an aid station in August 1985 when the Veteran reported his right knee pain gradually increasing for two weeks and was diagnosed with chondromalacia patella. The note states that the right knee injury occurred five years prior to service. Accordingly, the Board finds that the evidence of record, viewed as whole, shows that the Veteran’s right knee injury clearly and unmistakably preexisted service. The Board further finds that the lack of aggravation is not clear and unmistakable. At the outset, the Board notes the September 1986 Veteran’s lay statement that he sustained a knee injury during a football game prior to service. The Veteran further stated that his right knee injury eventually healed and did not affect him, as he continued to play sports for years through high school and prior to service ran three miles every other day. According to the Veteran, he had his knees x-rayed prior to service and he was told that his health was one hundred percent. The Board notes that at least this much is supported by the July 1984 enlistment physical. The Board further notes that the evidence, viewed as whole, shows that, between the time the Veteran enlisted in service when he was in “excellent health” running three to four miles every other day and the time he separated from service, the Veteran could barely walk two hundred yards without pain. This is supported by the August 1986 MEB medical examiner’s report. On the issue of aggravation, the evidence of record also reflects the two more-recent opposing medical opinions, the October 2013 VA examiner’s negative opinion and the April 2015 private provider’s positive opinion. On the one hand, the VA medical examiner opined that the Veteran’s current right knee disability, although etiologically relates to the preexisting right knee injury, has not worsened beyond its natural progression and was not aggravated during service. On the other hand, the private medical provider opined that the Veteran’s preexisting injury was mild but was worsened and exacerbated by the physical military training. This positive medical opinion resonates with the MEB medical examiner’s report that the Veteran’s right knee disability rendering him unfit for duty was due to stresses of physical military training. The opposing medical opinions functionally rule out a possibility of finding that the evidence leading to a conclusion adversely affecting the Veteran is undebatable, which in turn precludes a clear and unmistakable finding of the lack of aggravation. Accordingly, the Board finds that the lack of aggravation is not clear and unmistakable. Therefore, absent the clear and unmistakable lack of aggravation, the presumption of soundness has not been rebutted and remains attached. It follows that the Veteran must be legally presumed to have been in sound condition at the time of entry into service and his claim should proceed as a direct service connection. B. Direct Service Connection The Board finds that service connection for right knee disability is warranted here. The Board finds that the evidence of record shows a present disability, to include right knee chondromalacia diagnosed in August 1985 and painful bipartite patella disability diagnosed in August 1986, both diagnosed in service and confirmed at the October 1987 VA medical examination, and right knee osteoarthritis diagnosed in 2012 and then confirmed at the October 2013 VA medical examination. The Board also finds that the Veteran more likely than not had incurred right knee disability in service. For the purposes of establishing direct service connection, the Veteran is legally presumed to have been in sound condition when he enlisted. Subsequent to his enlistment in “excellent health,” as reflected in the STR, the Veteran began to experience right knee pain which intensified progressively over the next nine months and culminated in the August 1986 diagnosis of right knee painful bipartite patella disability which rendered the Veteran unfit for duty and resulted in his separation from service in February 1987. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran incurred right knee disability during service. The Board further finds that the Veteran’s right knee disability at least as likely as not etiologically relates to service. In the August 1986 MEB report, the MEB examiner opined that the Veteran’s right knee disability was caused by the stresses of physical training, whereas the examiner noted that the “past medical history and review of systems are noncontributory.” The MEB examiner further indicated that the prognosis for the right knee disability is poor. In April 2015, the private medical provider opined that the right knee disability has worsened and was exacerbated by the rigorous military training and of “possible longterm nature due to physical training in the military.” The October 2013 VA medical examination was limited to evaluating an aggravation of conceivably preexisting right knee disability and the report remained silent as to whether the Veteran’s right knee disability was at least as likely as not related to service, which is the legal standard here. Despite finding no aggravation of preexisting right knee injury, the VA medical examiner opined that the osteoarthritis is etiologically related to the Veteran’s right knee injury because that injury considered together with an “old” fracture has changed the knee cartilage microenvironment resulting in the Veteran’s current right knee osteoarthritis disability. Here, the Board notes that the Veteran was not afforded an X-ray and an orthopedic evaluation of his right knee until approximately one year after his initial complaint of knee pain and that no evidence of record whatsoever actually dates the “old” fracture, while it is conceivable that by the time of X-ray the otherwise unqualified fracture was “old” in relation to the Veteran’s initial complaint of pain. Based on the two medical opinions that the Veteran’s right knee disability relates to physical stress of military training and another medical opinion that an undated right patella fracture first-noticed in service etiologically contributed to the Veteran’s diagnosed osteoarthritis, it follows that the evidence of record shows that the Veteran’s right knee disability at least as likely as not etiologically relates to his service. In cases where the positive and negative evidence strikes an approximately equal balance, the benefit of the doubt is accorded to the Veteran. Accordingly, by the operation of law in affording the Veteran the presumption of soundness and the benefit of the doubt, the Board resolves the claim in Veteran’s favor. (Continued on the next page)   Therefore, entitlement to service connection for right knee disability is granted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Bardin, Associate Counsel