Citation Nr: 18155206 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-29 911 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a right knee and right leg disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a left knee and left leg disability is reopened. Entitlement to service connection for a right knee and right leg disability is denied. Entitlement to service connection for a left knee and left leg disability is denied. Entitlement to service connection for a lower back disability is denied. FINDINGS OF FACT 1. An unappealed March 2010 decision by the Board of Veterans’ Appeals (Board) denied entitlement to service connections for a right knee and right leg disability, and a left knee and left leg disability based on the determination that the Veteran’s current disability was not incurred in service, is related to disease or injury in service, or is due to a service-connected disability. 2. The evidence received since March 2010, to include an August 2014 opinion from Dr. W.W., a December 2014 VA medical opinion, and a September 2017 letter from Dr. C.M., and when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the service connection claims for a right knee and right leg disability, and a left knee and left leg disability. 3. The preponderance of the evidence is against a finding that the Veteran’s right knee and right leg disability was incurred in service, is related to disease or injury in service, or is due to a service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran’s left knee and left leg disability was incurred in service, is related to disease or injury in service, or is due to a service-connected disability. 5. The preponderance of the evidence is against a finding that the Veteran’s lower back disability was incurred in service, is related to disease or injury in service, or is due to a service-connected disability. CONCLUSIONS OF LAW 1. The March 2010 Board decision, which denied the Veteran’s claim of entitlement to service connection for a right knee and right leg disability, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156 (2017). 2. The March 2010 Board decision, which denied the Veteran’s claim of entitlement to service connection for a left knee and left leg disability, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156 (2017). 3. The evidence received since the March 2010 Board decision is new and material, and the claim of entitlement to service connection for a right knee and right leg disability, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The evidence received since the March 2010 Board decision is new and material, and the claim of entitlement to service connection for a left knee and left leg disability, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for a right knee and right leg disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 6. The criteria for service connection for a left knee and left leg disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). 7. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to December 1970. In a June 2002 rating decision, the RO denied the Veteran’s service connection claims for a right knee and right leg disability and a left knee and left leg disability. The decision was appealed by the Veteran, and the Board remanded the matter for further development in May 2004. After the May 2004 Board remand, the RO issued a Supplemental Statement of the Case (SSOC) in January 2005. Subsequently, the RO issued two more SSOCs in May and September 2005, and the matter came back before the Board. In March 2006, the Board denied the service connection claims for a right knee and right leg disability and a left knee and left leg disability. In February 2007, the Veteran appealed the March 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2007, the Court vacated and remanded the Board’s March 2006 decision pursuant to a Joint Motion for Remand submitted by the parties. As such, the appeal was returned to the Board for compliance with the instructions set forth in the May 2007 Joint Motion for Remand. In light of those instructions, the Board remanded the matter for further development in October 2007. In June 2009, the RO issued a SSOC and continued the denial of the Veteran’s service connection claims for a right knee and right leg disability, and a left knee and left leg disability. The matter came back before the Board’s review, and it was denied by a March 2010 Board decision. The Board notes that the Veteran did not appeal the March 2010 Board decision. As to the service connection claim for the Veteran’s lower back disability, the Veteran filed a separate service connection claim for his lower back, right shoulder, and neck conditions in March 2005, and a May 2005 rating decision denied the separate claim. In August 2014, after the Veteran’s submission of new and material evidence, his service connection claim for the lower back disability was reopened. The RO denied the claim in a December 2014 rating decision, and the Veteran made a timely appeal. Therefore, the issues of service connection claims for a right knee and right leg disability, and a left knee and left leg are before the Board on appeal from the March 2010 Board decision, and the issue of service connection claim for a lower back disability is before the Board on appeal from the December 2014 rating decision. Legal Criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to the VA, and “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. 38 C.F.R. § 3.156 (a) (2017). 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. Id. Facts and Analysis The Board finds that the VA received new and material evidence since a prior final March 2010 Board decision in regard to the Veteran’s entitlement to service connection claims for a right knee and right leg disability, and a left knee and left leg disability. The evidence includes the August 2014 opinion from Dr. W.W., the December 2014 VA medical opinion, and the September 2017 letter from Dr. C.M. The evidence is new as it was not considered at the time of the prior final denial of the Veteran’s claim. See March 2010 Board decision. The Board finds that the new evidence is material as it reasonably substantiates the nexus element, which was not established at the time of the prior denial. Therefore, the Veteran’s claims are reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Service connection for a right knee and right leg disability The Veteran contends that he is entitled to service connection for a right knee and right leg disability since it was caused by an in-service injury in 1970. First, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of a right knee and right leg disability. The Board notes that the Veteran was afforded a VA examination in May 2004, in which the examiner did not find the claimed right knee and right leg disability. May 2004 C&P Examination on Joints. However, the Board notes that there are competent and credible evidence of the Veteran’s current right knee and right leg disability, i.e., a February 2006 treatment record from Dr. N.C., a February 2006 opinion from Dr. G.V., the August 2014 opinion from Dr. W.W., and the September 2017 letter from Dr. C.M. The Board also notes that the lay statements on record, i.e., a November 2007 J.S. Statement, a January 2008 M.B. Statement, and a May 2010 J.S. Statement, are competent and credible evidence to report the symptoms of the Veteran’s right knee and right leg disability. Based on above, the Board finds that the Veteran has a current diagnosis of a right knee and right leg disability. Next, the Board finds that the weight of the evidence is at least in equipoise as to the in-service injury of the Veteran’s right knee. The Veteran stated that, during his military service in September 1970, he had injured his right knee and right leg on a set of stairs and received treatment. See September 2001 and November 2007 Statements in Support of Claim. The Veteran’s claimed that the September 1970 injury was reported in his service treatment record as he was treated for an acute onset of right knee weakness and numbness on September 12, 1970. See September 12, 1970 Service Treatment Record. Based on above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran had an in-service injury of his right knee and right leg. However, the Board finds the preponderance of the evidence is against a finding a causal relationship between the Veteran’s current right knee and right leg disability and the claimed in-service injury. The Board notes that except for the one-day treatment history for an acute onset of right knee weakness and numbness in September 1970, the Veteran’s service treatment records do not include any further complaints or related diagnoses, or treatment history of the Veteran’s right knee or right leg. Also, a December 1970 separation examination report indicates that the lower extremities examination was normal except for a scar on the right knee. December 1970 Report of Medical Examination. Significantly, in December 2014, a VA medical examiner opined that the claimed right knee and right leg disability was less likely than not incurred in or caused by the claimed in-service injury. December 2014 VA Medical Opinion. The VA medical examiner noted that the diagnosis the Veteran received during the claimed in-service injury in September 1970 was conversion reaction, which is a psychological condition, and not an orthopedic condition. Id., at 2; see also September 12, 1970 Service Treatment Record. The Board finds the December 2014 VA medical opinion as a competent and credible evidence, and assigns more probative weight since the VA examiner reviewed all of the relevant records and provided a detailed rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that a private doctor W.W. opined that the Veteran’s bilateral knee condition is related to his military service. August 2014 Physician’s Statement. Although the Board finds this evidence competent and credible, it cannot assign more probative weight since Dr. W.W. did not provide any rationale for his opinion. Also, the Board notes that the Veteran has submitted the September 2017 letter from Dr. C.M. Dr. C.M. provided that the Veteran is continuing to have his right knee problems, but did not opine on whether his knee condition is related to his in-service injury. Rather, she simply recited the claimed in-service injury history provided by the Veteran. Therefore, the Board finds that the September 2017 letter from Dr. C.M. cannot be considered as a competent nexus opinion. Based on above, the Veteran’s entitlement to service connection for his right knee and right leg disability is not warranted. 38 U.S.C. §§ 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). Service connection for a left knee and left leg disability The Veteran contends that he is entitled to secondary service connection for his left knee and left leg disability, because his right knee and right leg disability has caused or aggravated the disability in his left side. However, as set forth above, the Veteran is not entitled to service connection for his right knee and right leg disability, therefore, an analysis for the secondary service connection is not necessary. Now the Board turns to the issue of whether the Veteran is entitled to direct service connection for his left knee and left leg disability. First, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of a left knee and left leg disability. The Veteran stated that he sustained injuries to his left leg, and his doctor prescribed four knee braces for support and medications for pain. See September 2004 Veteran’s Statement. As mentioned above, in August 2014, the private doctor W.W. stated that the Veteran is diagnosed with bilateral knee condition. August 2014 Physician’s Statement. Based on above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of a left knee and left leg disability. However, the Board finds that the preponderance of the evidence is against a finding of an in-service incurrence or injury related to the Veteran’s left knee and left leg. The Veteran contends that he has continuously suffered from pain, swelling, stiffness, limited motion, locking, and falling due to his left knee and left leg disability since the onset of his problems while in service. March 2005 Statement in Support of Claim. However, the Board notes that the Veteran’s service treatment records do not include any complaints, diagnoses, or treatment history related to the Veteran’s left knee and left leg disability. The Board also notes that the Veteran’s June 1968 service entrance examination does not contain any complaints or clinical findings of a leg or knee disability. June 1968 Report of Medical Examination. Significantly, the December 2014 VA medical examiner opined that the claimed left knee and left leg disability was less likely than not incurred in or caused by the claimed in-service injury. December 2014 VA Medical Opinion. The VA medical examiner noted that the record shows that the Veteran was involved in a 20-speed bike accident in October 2008, and it establishes a cause for the Veteran’s left knee pain. December 2014 VA Medical Opinion at, 2; see also October 2008 Outpatient Individual Note. The VA medical examiner also noted that the October 2008 accident shows that the Veteran was able to ride a 20-speed bike at that time. Id. The Board finds the December 2014 VA medical opinion competent and credible, and assigns high probative weight since the VA examiner reviewed all of the relevant records and provided a sound rationale for his opinion. Based on above, the Veteran’s entitlement to service connection for his left knee and left leg disability is not warranted. 38 U.S.C. §§ 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). Service connection for a lower back disability The Veteran contends that he is entitled to secondary service connection for his lower back disability, because he has injured his lower back by occasional fallings due to his knee disability. September 2004 Veteran’s Statement. However, as set forth above, the Veteran is not entitled to service connection for any knee disabilities, therefore, an analysis for the secondary service connection is not necessary. Thus, now the Board turns to the issue of whether the Veteran is entitled to direct service connection for a lower back disability. First, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of a lower back disability. The Board notes that, in August 2014, the private doctor W.W. opined that the Veteran was diagnosed with a lower back disability. See August 2014 Physician’s Statement; see also August 2014 Visit Note. Based on above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has current diagnosis of a lower back disability. However, the Board finds that the preponderance of the evidence is against a finding of an in-service injury or incurrence related to the Veteran’s lower back disability. The Board notes that the Veteran marked “no” to the question about any back conditions on his report of medical history for his separation. December 1970 Report of Medical History. Also, the report of medical examination for separation indicates that the Veteran’s spine was normal. December 1970 Report of Medical Examination. Moreover, the Veteran’s service treatment records do not include any complaints or diagnoses related to the Veteran’s lower back disability. Further, the December 2014 VA medical examiner opined that the claimed lower back disability was less likely than not incurred in or caused by an in-service injury. December 2014 VA Medical Opinion. The VA medical examiner noted that the record shows that the Veteran suffered back injuries after his military service, and his back pain began in 1993 after a falling incident at a work site. See December 2014 VA Medical Opinion; see also November 1999 Dr. J.C. Letter, at 1; November 1999 NC Disability Report, at 1, 3; May 2000 Report of Psychological Evaluation, at 2, 4; May 2000 Disability Determination Evaluation, at 1, 4. The Board finds the December 2014 VA medical opinion competent and credible, and assigns high probative weight since the examiner provided a sound rationale after reviewing all of the relevant records. Based on above, the Veteran’s entitlement to service connection for his lower back disability is not warranted. 38 U.S.C. §§ 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel