Citation Nr: 18155991 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-63 795 DATE: December 6, 2018 ORDER 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability based on aggravation. 2. The reopened claim of entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. In a May 2002 rating decision, the RO denied service connection for a right knee disability based on a finding that the Veteran’s disability preexisted service and was not aggravated by service. The Veteran did not perfect his appeal. 2. In an unappealed April 2011 Board decision, the Board found that new and material evidence had not been received to reopen the claim of entitlement to service connection for a right knee disability. 3. Evidence submitted subsequent to the April 2011 Board decision is not cumulative or redundant of evidence previously of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right knee disability. 4. The Veteran’s right knee disability was noted upon enlistment into active duty service. 5. The Veteran’s right knee disability was not permanently worsened or aggravated beyond the normal progression of the disability during or as a result of his active duty service. CONCLUSIONS OF LAW 1. The May 2002 rating decision denying service connection for a right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The April 2011 Board decision that found that new and material evidence had not been received to reopen the claim of entitlement to service connection for a right knee disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 3. The criteria for reopening the claim of entitlement to service connection for a right knee disability, on the basis of new and material evidence, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1993 to October 1993. New and Material Evidence If a claim for 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. 38 C.F.R. § 3.156(a). 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. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104, and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claim on a de novo basis. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability The claim for service connection for a right knee disability was initially denied in an May 2002 rating decision based on a finding that the Veteran’s right knee disability preexisted service, and was not proximately due to or aggravated (permanently worsened) by service. The Veteran was notified of this determination in an May 2002 letter, which included information about the Veteran’s appeal rights. Although the Veteran submitted an August 2002 Notice of Disagreement (NOD), and VA issued a February 2003 Statement of the Case (SOC), the Veteran did not perfect his appeal. The Veteran has not contended that this rating decision is not final as to this issue. Thus, the May 2002 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The claim for service connection for a right knee disability was next denied in a January 2005 rating decision based on a finding that the Veteran had not submitted new and material evidence to reopen the claim, and the Veteran appealed the decision. The claim was again denied in a December 2009 Board decision, based on a finding that the Veteran had not submitted new and material evidence to reopen the claim. The Veteran appealed the decision, and in a September 2010 U.S. Court of Appeals for Veterans Claims (Court) decision, the December 2009 decision was vacated and the case was remanded for further consideration. In an April 2011 Board decision, the claim for service connection for a right knee disability was denied based on a finding that the Veteran had not submitted new and material evidence to reopen the claim. The Veteran did not appeal the April 2011 Board decision. The Veteran has not contended that this decision is not final as to this issue. Thus, the April 2011 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The pertinent evidence of record at the time of the April 2011 Board decision included the Veteran’s DD Form 214, service treatment records (STRs), the April 2006 hearing, and private medical records. The Veteran now seeks to reopen his claim of service connection for a right knee disability on the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in April 2011. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. For example, in an August 2015 private medical opinion, the examiner opined that the Veteran’s service worsened the Veteran’s right knee disability beyond its natural progression. This evidence is new, because it has not been previously submitted. This evidence is also material because it pertains to the bases for the prior denial, that is, that the Veteran’s right knee disability was aggravated by service, and raises a reasonable possibility of substantiating the claim. In this regard, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a right knee disability. See 38 C.F.R. § 3.156(a). The reopened issue of service connection for a right knee disability is adjudicated below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disabilities noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disability will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. The reopened claim of entitlement to service connection for a right knee disability The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a right knee disability. The reasons follow. The Veteran’s entrance examination, conducted in November 1992, indicates that clinical evaluation of the lower extremities was abnormal at entrance into service. The Veteran explained that he had sustained an injury in 1987 and underwent a meniscectomy on his right knee. With an abnormal finding of the lower extremities on enlistment, the presumption of soundness does not attach with respect to a right knee disability, and the only benefit that can be awarded for a right knee disability is service connection on the basis of aggravation of the pre-existing right knee disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Independent medical evidence is needed to support a finding that the preexisting disability increased in severity in service. The question of whether there has been an increase in disability during service must be answered in the affirmative before presumption of aggravation attaches, so that presumption is unaffected by the rule on service connection for increase in disability during service. The presumption of aggravation created by section 38 C.F.R. § 3.306 applies only if there is an increase in severity during service. The Veteran’s STRs do not support a finding that his right knee disability was aggravated by service. For example, in a December 7, 1992 record, the Veteran complained of swelling and pain; however, the examiner concluded that the Veteran had a normal functioning knee. The Veteran’s STRs also contain a private medical record from the same date, in which the examiner found “osteoarthritic changes of early onset which occurs commonly after a meniscectomy is done.” In a February 1993 dental health questionnaire, the Veteran denied any painful joints. In an April 1993 STR, the Veteran was seen for a swollen knee, which he stated had been swollen for five years. At the Veteran’s September 1993 separation examination, he was found to have a clinically normal assessment of his lower extremities. After active duty service, in a November 1993 annual certificate of physical condition, the Veteran reported no defects that would restrict his performance, active duty, or prevent his mobilization. In a May 1994 record, the Veteran noted that his right knee was fully healed, and that he had no health problems. It was not until a November 1994 annual certificate of physical condition, that the Veteran reported pain in his right knee when he exercised, strain when bending, and occasional swelling. The fact that during service, the Veteran stated that his knees had been swollen since before service; that his private doctor found that his osteoarthritic changes were part of the natural progression of his pre-existing disability; and that the Veteran had a clinically normal separation examination all weigh against a finding that the Veteran’s right knee disability was aggravated during service. The fact that after service in November 1993 and May 1994, the Veteran denied any problems with his knee, also weigh against a finding that the Veteran’s right knee was aggravated during service. Following service, the Veteran filed a claim for service connection for a right knee disability in November 2001. During the April 2006 Board hearing, the Veteran testified that his right knee disability was aggravated by his active duty service during boot camp. Lay persons are competent to provide opinions on some medical issues. However, distinguishing an in-service exacerbation of symptoms from a true worsening of a right knee disability falls outside the realm of common knowledge of a lay person. Thus, the Veteran’s assertions are not competent evidence of worsening or aggravation. To the extent that the Veteran is competent to claim that his right knee was aggravated during service, the Board finds that the contemporaneous records do not support that the disability was aggravated during his period of active duty. The Veteran contends that he was hospitalized for an injury to his knee during service. However, although the Board previously remanded the case to obtain related information, responses from Beaufort Naval Hospital and the NPRC indicate that no records regarding the Veteran’s reported in-service hospitalization were found. Accordingly, the record does not support that such an incident occurred, and the Board assigns no probative value to this contention. In an April 2002 VA examination, the examiner opined that the Veteran’s current condition of the right knee was a natural progression, explaining that the Veteran had gained more than 60 pounds since he was injured, which contributed to his knee symptoms. This opinion does not support a finding that the Veteran’s right knee disability was aggravated during service. In an August 2015 private medical record, the examiner opined that it is as likely as not the Veteran’s right knee disability was aggravated by service. However, the examiner did not provide any rationale for this opinion. Additionally, the examiner stated that while the Veteran was diagnosed with right knee degenerative joint disease and arthritis, the examiner could not ascertain the date of diagnosis or its cause. A medical opinion is insufficient without a valid rationale, and is additionally insufficient when based upon speculation. For these reasons, the Board assigns this opinion no probative value. To the extent that the Veteran stated that a right knee disability was aggravated by service, his service treatment records do not support such a finding. To the extent that the Veteran stated that the current condition of his right knee disability is otherwise related to service, his allegation is outweighed by that of the April 2002 examiner, who provided the opinion that a right knee disability was aggravated by service, and has naturally progressed. As the Veteran has not met the burden of establishing a worsening of the right knee disability in service, there is no presumption of aggravation. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). He also bears the burden of establishing that his right knee disability was aggravated by service. The Board finds that this burden has not been met. Accordingly, the Board concludes that service connection for aggravation of a right knee disability is not warranted. Therefore, as the preponderance of the evidence is against entitlement to service connection for a right knee disability, the benefit of the doubt doctrine does not apply, and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel