Citation Nr: 18159081 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-55 181 DATE: December 19, 2018 ORDER New and material evidence having been received, the claim for service connection for a right knee disorder is reopened. New and material evidence having been received, the claim for service connection for a left knee disorder is reopened. Service connection for a right knee disorder is granted Service connection for a left knee disorder is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a bilateral knee disorder was originally denied in a January 1992 rating decision for lack of a current knee disability; this rating decision became final as it was not appealed and no new evidence was associated with the file within the appeal period. 2. In a final decision issued in March 2000, the Agency of Original Jurisdiction (AOJ) determined that new and material evidence sufficient to reopen the claim of entitlement to service connection for a bilateral knee disorder had not been received. 3. Evidence added to the record since the final March 2000 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a right knee disorder and a left knee disorder. 4. It is at least as likely as not that the Veteran’s bilateral knee disorder is caused at least in part by his service-connected pes planus disability. CONCLUSIONS OF LAW 1. The January 1992 and March 2000 rating decisions that denied service connection for a bilateral knee disorder and denied reopening the previously denied claim are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 1112, 1154(a), 5107; 38 C.F.R §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a left knee disorder have been met. 38 U.S.C. §§ 1110, 1112, 1154(a), 5107; 38 C.F.R §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1987 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). Reopening Previously Denied Claims By way of background, the Veteran’s claim for service connection for a bilateral knee disorder was originally denied in a January 1992 rating decision. At such time, the AOJ considered the Veteran’s service treatment records (STRs) and a December 1991 VA examination. In this regard, the AOJ noted that the Veteran’s STRs were silent for any right knee condition, but that he was treated in-service for a left knee injury. However, the AOJ found that the Veteran did not have a current bilateral knee disorder; thus, his claim for service connection for a bilateral knee disorder was denied. The Veteran subsequently filed an application to reopen such claim in June 1995 and in a March 2000 rating decision, the AOJ found that new and material evidence sufficient to reopen the claim of entitlement to service connection for a bilateral knee disorder had not been received. In March 2000, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. In this regard, the Veteran submitted a statement in June 2000 stating that his right knee disorder had worsened in severity and requested an increase in service connected disability due to his right knee disorder. Later that same month, the Veteran was informed that his request could not be completed because he was not service-connected for a right knee disorder and what evidence was needed to reopen such claim. However, no additional evidence referable to his right or left knee disorder was received or constructively of record within one year of the issuance of the March 2000 decision, and no relevant service department records have since been associated with the record. Therefore, the March 2000 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final March 2000 rating decision includes a December 2015 VA examination indicating that the Veteran has a currently diagnosed bilateral knee disorder. The Veteran has also advanced a new theory of entitlement. In this regard, he now claims, in the alternative, that his bilateral knee disorder is caused or aggravated by his service-connected bilateral pes planus with plantar fasciitis. Furthermore, the Veteran submitted an October 2015 letter from Dr. W.L. indicating that the Veteran has a bilateral knee disorder that is related to such service-connected disability. Consequently, as the newly received evidence indicates that the Veteran has a currently diagnosed bilateral knee disorder, the element found to be lacking in the prior denial, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the March 2000 decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a right knee disorder and a left knee disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claims for service connection for a right knee disorder and a left knee disorder are reopened. Service Connection The Board finds that service connection for a bilateral knee disorder is warranted as secondary to the Veteran’s service-connected bilateral pes planus with plantar fasciitis. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, the Veteran has been diagnosed with osteoarthritis of the knees, bilaterally. Service-connection is in effect for bilateral pes planus with plantar fasciitis. In October 2015, Dr. W.L., the Veteran’s treating health care provider, opined that the Veteran’s bilateral knee disorder was proximately caused by his service-connected bilateral pes planus. Dr. W.L. reasoned that the Veteran’s pes planus is productive of severe over pronation, which causes his legs to internally rotate and effect his knees. The Veteran’s medical records confirm that he suffers over pronation, as an abnormal gait due to over pronation is noted elsewhere in the medical records. See October 2002 VA Podiatry Clinic Note; October 2012 Private Medical Record. Dr. W.L. further noted that the Veteran had arthroscopic surgery on his knees for chondromalacia and continued to complain of knee pain because his legs rotate internally due to the talus deviating medially. Thus, he concluded that the Veteran’s knee disorders are definitely connected to the severe pronation that he has on both feet. Dr. W.L. has treated the Veteran for several years, and as such has knowledge of his relevant medical history. The Board finds Dr. W.L.’s opinion probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board notes the December 2015 VA examiner’s negative nexus opinion; however, as the evidence of record is at least in equipoise on the issue of whether the Veteran’s bilateral knee disorder is caused by his service-connected pes planus, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b). Thus, the Board finds that service connection for a bilateral knee disorder is warranted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel