Citation Nr: 18159607 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-57 700 DATE: December 19, 2018 ORDER Reopening of the previously denied claim of service connection for a right knee disorder is denied. Reopening of the previously denied claim of service connection for cracked left lower rib/a left rib disorder is denied. Reopening of the previously denied claim of service connection for a left knee disorder is granted. Service connection for left knee degenerative joint disease, status post left knee arthroscopy with partial medial meniscectomy and chondroplasty is granted. FINDINGS OF FACT 1. The Veteran does not have a current right knee disorder, so the evidence does not relate to an unestablished fact or raise a reasonable probability of substantiating the claim. 2. The Veteran does not have a current left rib disorder, so the evidence does not relate to an unestablished fact or raise a reasonable probability of substantiating the claim. 3. A chronic and current left knee disorder was incurred during a 1978 motor vehicle accident. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of service connection for a right knee disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening the previously denied claim of service connection for cracked left lower rib/a left rib disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left knee degenerative joint disease, status post left knee arthroscopy with partial medial meniscectomy and chondroplasty, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to April 1979. The case is on appeal from an April 2016 rating decision, which confirmed and continued prior denials of service connection for left rib, left knee, and right knee injuries. The Board notes that the Veteran has also perfected an appeal for service connection for blood clot/portal vein, and has requested a Board Hearing to discuss that matter in a separate appeal. See Veteran’s August 2017 Form 9, and RO’s December 6, 2018 Certification of Appeal. That claim will be resolved in a separate decision, after the requested Board Hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Reopening of Previously Denied Claims A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 C.F.R. § 3.156(a). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the claim on the merits. 38 U.S.C. § 5108. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Reopening of claim for service connection for a right knee disorder 2. Reopening of claim for service connection for a left rib disorder In April 1994, the RO denied service connection for cracked left bottom rib on the grounds of “not well grounded as there is no fracture to ribs shown in-service” and no medical evidence or opinion that linked the claimed disorder to service. In July 2003, the RO denied service connection for right knee disorder on the grounds that a right knee disorder was not incurred in or aggravated by service, or diagnosed within the presumptive period of one year from date of discharge. Evidence received since the April 1994 denial of service connection for a left rib disorder and the July 2003 denial of service connection for a right knee disorder includes the report of an April 2016 VA examination, which informs that the Veteran does not have a current disorder of the left rib or right knee. VA medical records (including radiology records) dating from 2016 also contains no mention of a current left rib or right knee problem; and x-rays of the ribs and right knee are normal. Reopening of the claim for service connection for a left rib and right knee disorder is thus not warranted; as there is no reasonable probability of substantiating the claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (Service connection may not be granted unless a current disability exists); Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). 3. Reopening of claim for service connection for a left knee disorder In an April 1994 rating decision, the RO denied service connection for left knee disorder on the grounds of “not well grounded as there is no current evidence of a left knee disability.” No new evidence or notice of disagreement was received by VA within one year of the issuance of the April 1994 rating decision. As the Veteran did not appeal the April 1994 decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, the Board finds that new and material evidence has been submitted (see, e.g., August 2003 x-ray findings of left knee osteoarthritis), so that the previously denied claim of service connection for a left knee disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 4. Service connection for a left knee disorder The Veteran seeks service connection for pain and other residuals of a left knee injury that he sustained during a 1978 motor vehicle accident. Military records confirm that the Veteran’s left knee was injured in a September 1978 motor vehicle accident, and that he received ongoing treatment and was repeatedly placed on Profile because of the left knee thereafter. See, e.g., STRs dated October 31, 1978, which show that the Veteran was on crutches and placed on 30 day Profile because of the left knee injury. Military treatment providers also averred that the Veteran, who was a passenger in the vehicle, did not have a left knee problem prior to the September 1978 motor vehicle accident. Id. On VA examination of the left knee in November 1993, the diagnosis was “history [sic] consistent with a medial meniscal tear.” X-rays of the left knee found “calcification at the origin of the medial collateral ligament, likely representing post-traumatic change.” The examiner did not opine as to whether the disorder was service related, but he did note that the Veteran had not reinjured the knee since the in-service motor vehicle accident. In August 2015, the Veteran felt his left knee “crunch and pop” while walking his dog. See VAMC Emergency Department records dated in August 2015. An MRI in December 2015 found “fairly high-grade patchy chondromalacia of the medial femoral condyle and fairly extensive degenerative tearing of the medial meniscus with an oblique component, and some evidence of medial collateral strain.” In December 2015 the Veteran underwent left knee surgery. On VA examination in April 2016, the diagnosis was mild degenerative joint disease, which the examiner said was “a natural progression of age,” but the Board notes that this was after left knee arthroscopy in December 2015. See December 2015 pre-operative records, which found “fairly extensive degenerative tearing of the medial meniscus. Although the examiner did in fact mention the 2015 left knee surgery, she stated that the surgery was secondary to “an injury to the left knee in Salt Lake City in 2015 where his left knee popped and he tore his meniscus and has surgery to repair.” This, however, is contrary to the medical evidence of record, which contains evidence of medial meniscal tearing long before the 2015 incident. See November 1993 VA examination report, which returned a left knee diagnosis of “most consistent with a medial meniscal tear.” Additionally, x-rays of the left knee in conjunction with the 1993 VA examination found calcification at the origin of the medial collateral ligament that the radiologist described as “likely representing post-traumatic change.” This is significant since there is no record of trauma to the Veteran’s left knee prior to 1993, other than the 1978 in-service motor vehicle accident. The examiner also stated that the left knee injury during service was acute and transitory, but this is contradicted not only by the STRs (which chronicle prolonged treatment and incapacitation of the left knee after the September 1978 motor vehicle accident), but by the Veteran’s assertion of left knee pain since the in-service event; which in turn is supported by the post-service medical evidence, and is thus credible. The Board consequently finds that the examination’s assertion (that the Veteran’s left knee injury resolved during service without sequelæ) is outweighed by the competent medical and credible lay evidence of persistent left knee symptomatology since the in-service injury. See Evans v. West, 12 Vet. App. 22, 30 (1998) (It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). (Continued on the next page)   In sum, the evidence shows that the Veteran incurred a grievance injury to the left knee during a 1978 motor vehicle accident while in-service that left him unable to bear weight on the knee and required months of treatment. This is highly probative evidence in favor of the claim. The record also contains post-service medical and lay evidence of left knee pain since the in-service injury; and medical evidence (long before the August 2015 incident) which indicates that the Veteran’s left knee arthritis was due to trauma (post traumatic). This too favors the claim. The Board thus finds that a chronic left knee disorder, currently diagnosed as degenerative joint disease (status post left knee arthroscopy with partial medial meniscectomy and chondroplasty), was incurred during service. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel