Citation Nr: 18153078 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 295 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a left knee impairment is reopened. Entitlement to service connection for a left knee internal derangement is granted. FINDINGS OF FACT 1. Since the April 2007 rating decision became final, new and material evidence has been received with regard to the claim for entitlement to service connection for a left knee impairment. 2. The Veteran’s current left knee internal derangement is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received; thus, the claim of entitlement to service connection for a left knee impairment is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a left knee internal derangement have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional office (RO). While the Veteran originally requested a hearing before a Veteran’s Law Judge, he later withdrew his request for a hearing in a September 2017 correspondence. Petition to Reopen The Veteran requested to reopen his claim for service connection for a left knee impairment, originally denied in an April 2007 rating decision. In order to reopen the claim, there must be new and material evidence to consider. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed in the following decision to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). In this case, the Veteran’s claim was originally denied in April 2007. The claim was denied on the basis that the evidence did not establish a causal nexus between an event or injury in service with the current disability reported. The Veteran did not file a notice of disagreement or submit new and material evidence during the appeal period. Therefore, the April 2007 rating decision became final. Since the April 2007 rating decision became final, additional evidence has been associated with the claims file. In pertinent part, a May 2016 VA examination report and opinion regarding the Veteran’s left knee injury has been associated with the claims. Additionally, a private opinion dated November 2017 regarding the same matter has been associated with claims file. This evidence is new as it was not of record or in existence at the time the prior denial became final. The evidence is also material as it relates to the previously unestablished causal nexus between the Veteran’s service and his current disability. As new and material evidence has been received, reopening of the previously denied claim of service connection for a left knee disability is warranted. Service Connection As the claim for service connection has been reopened, the Board must consider the merits of the Veteran’s claim of entitlement to service connection for a left knee disability. Generally, to establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Here the Veteran reports that he has a current left knee disability manifested with pain and limited motion. He reports that it began in service and has continued since. The evidence of record establishes that the Veteran has a current left knee disability. At the Veteran’s May 2016 VA examination, the examiner diagnosed the Veteran with left knee strain. The November 2017 private opinion indicated that the more precise diagnosis is internal derangement of the left knee. Further, the evidence of record establishes that the Veteran had a left knee injury in service. Service treatment records from June 2005 indicate that the Veteran reported increasing left knee pain. The report indicates that the pain had been ongoing for one to two years and had become worse. At the time it was noted that the Veteran has an abnormal gait. Finally, the weight of the evidence of record supports a causal nexus between the Veteran’s in-service left knee pain and current left knee disability. For this the Board relies on the opinions of licensed medical professionals. In this case there are two conflicting opinions. The first opinion in the record comes from the May 2016 VA examiner. This examiner opined that the Veteran’s current disability was less likely than not related to the Veteran’s in-service left knee injury. The examiner’s rationale states that the conclusion is based on the lack of documented continuum of care for the condition. The Board finds that this rationale is deficient. An opinion is inadequate when it relies solely on the absence of medical evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the Board affords little weight to the May 2016 VA examiner’s opinion. The second opinion in the record was submitted by a private physician in November 2017. The opinion concludes that it is at least as likely as not that the Veteran’s current left knee internal derangement is related to his in-service left knee injury. The examiner provided a thorough analysis of the Veteran’s medical history, noting both positive and negative evidence in support of the claim. The examiner then provided a detailed discussion of why there is a likely medical nexus between the Veteran’s current left knee disability and the in-service left knee injury; noting the similar symptomatology and anatomical conditions that would result in the recurrent injury she found to be present. The Board affords this opinion significant weight because of its thorough rationale. CONTINUED ON NEXT PAGE Therefore, the evidence of record is sufficient to establish that the Veteran has a current left knee disability, that he had a left knee injury in service, and that the current disability is causally related to the in-service injury. Thus, service connection for left knee internal derangement is warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Reed, Associate Counsel