Citation Nr: 18158782 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-28 739 DATE: December 18, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for left knee patellofemoral syndrome is granted. The petition to reopen the previously denied claim of entitlement to service connection for right knee patellofemoral syndrome is granted. Service connection for left knee arthritis with patellofemoral syndrome is granted. Service connection for right knee arthritis with patellofemoral syndrome is granted. REMANDED Entitlement to a compensable rating for a migraine disability is remanded. FINDINGS OF FACT 1. In a February 2010 rating decision, the RO denied service connection for right and left knee disabilities. The Veteran did not timely appeal this decision, nor did she submit new and material evidence within one year of the decision. 2. Additional evidence has been received since the February 2010 rating decision that relates to an unestablished fact that is necessary to substantiate the claims. 3. The Veteran’s right knee arthritis with patellofemoral syndrome had its onset in service. 4. The Veteran’s left knee arthritis with patellofemoral syndrome had its onset in service. CONCLUSIONS OF LAW 1. The February 2010 rating decision that denied service connection for a left and right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for a left and right knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria to establish service connection for right knee arthritis with patellofemoral syndrome are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria to establish service connection for left knee arthritis with patellofemoral syndrome are met. 38 U.S.C. §§ 1110, 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 December 1988 to December 2008. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. 1. Whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for right and left knee patellofemoral syndrome The Veteran seeks entitlement to service connection for a left and right knee disability. Implicit in these claims is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims. The Board concludes that, while a February 2010 rating decision that denied service connection for bilateral knee disorder is final, new and material evidence has been received to reopen the previously denied knee claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purposes of determining whether the case should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A February 2010 rating decision deny service connection for disability of the right and left knee because, although the Veteran was seen for retropatellar pain syndrome of both knees in service, the current evidence showed no chronic disability or residuals associated with the in-service findings. The VA Regional Office notified the Veteran of that decision in a March 2010 letter and how to appeal. VA received no appeal of the decision or new and material evidence prior to expiration of the appeal period. Therefore, the February 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidentiary submissions received since the February 2010 rating decision include a December 2015 VA examination report, which shows a diagnosis for degenerative arthritis of both knees. This evidence is new and material as it was not before adjudicators when the claims were last considered and because it cures a prior evidentiary defect insofar as it shows a current disability of both knees. Accordingly, the petition to reopen the previously denied claims for service connection for the knees is granted. 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for left knee disability. Issues 2-3. The Veteran contends that her current bilateral knee disability had its onset in service, noting that her knee problems began in service and were documented at that time. The Board concludes that the Veteran’s right and left knee arthritis with patellofemoral syndrome had its onset in service. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. For arthritis, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service treatment records (STRs) reflect that she complained of knee pain multiple times throughout service. A March 2005 x-ray report shows normal bilateral knees although it further shows “No evidence of … a significant arthritic change. This notation of no significant arthritic change, coupled with an October 2007 STR showing osteoarthritis of the knees, strongly suggests that the Veteran had onset of arthritis of the knees in service. Arthritis and patellofemoral pain syndrome were conditions consistently included in her list of “active problems” by her military doctors. The December 2015 VA examination report reflects findings for arthritis of the knee. Although the examiner concluded that her current arthritis did not have its onset in service because the March 2005 x-ray shows an impression for normal knees, the Board finds that the medical opinion has diminished probative value because it did not consider the entirety of the x-ray report, which showed arthritic findings (albeit not significant) corroborated by the miliary doctors, who prepared the Veteran’s active problems. The Board assigns greater probative value to the in-service findings of arthritis with retropatellar pain syndrome, which are essentially corroborated by the December 2015 medical findings. On balance, the weight of the evidence supports the claims for service connection for right and left knee arthritis with patellofemoral syndrome. Accordingly, the knee claims are granted. REASONS FOR REMAND Entitlement to a compensable rating for a migraine disability is remanded. The Veteran contends that she is entitled to a compensable rating. In several communications to VA, in March and September 2016, the Veteran stated that she suffered from characteristic and prostrating headaches; as support for her statement, the Veteran submitted her headache journal. However, at the time of the Veteran’s December 2015 examination, it was noted that she did not suffer from any debilitating and prostrating headache attacks. Given the Veteran’s competent claims of worsening, an additional examination is in order. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and severity of her migraine disability. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected headache disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, and the degree of functional loss during headache episodes. To the extent possible, the examiner should identify any symptoms and functional impairments due to headaches alone and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. The examiner is asked to take into consideration the Veteran’s headache journal, as well as her September 2016 and March 2016 statements to the VA detailing that the severity of her headaches forced her to stay in bed. 2. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ryan