Citation Nr: 18159758 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-06 329A DATE: December 20, 2018 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right knee disability and the petition to reopen is granted. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a low back disability claimed as secondary to a right knee disability is remanded. FINDINGS OF FACT 1. In an unappealed July 1971 rating decision, the RO denied the Veteran’s original claim for service connection for a right knee disability. 2. The evidence received since the final rating decision in July 1971 relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability. 3. Resolving all doubt in the Veteran’s favor, symptoms of his currently diagnosed right knee arthritis had their onset during service and have been continuous since his separation from service. CONCLUSIONS OF LAW 1. The July 1971 rating decision denying service connection for a right knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the July 1971 rating decision is new and material, and the claim of service connection for a right knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1969. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for right knee strained ligament (claimed as injury to the right knee) in a July 1971 rating decision, finding that the Veteran’s service treatment records were silent regarding a right knee injury, and other than mild laxity of the ligament/strained ligament, there was no definite impairment. In other words, the rating decision found that at the time, there was no evidence of a current disability. The evidence considered at the time included the Veteran’s service treatment records, private medical treatment records, and May 1971 VA report of medical examination for disability evaluation. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the July 1971 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the July 1971 denial of the claim includes the Veteran’s October 2012 petition to reopen and private medical treatment records. This evidence, specifically private medical treatment records showing numerous diagnoses of a right knee disability along with references to his reported in-service injury and indication that the symptoms have been continuous since that time, relates to the unestablished element of a current disability and a possible nexus in the prior denial. The additional evidence received since the July 1971 final denial was not previously considered is therefore new, in addition to being material. The criteria for reopening the claim for service connection for a right knee disability are therefore met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran is currently diagnosed with degenerative joint disease of the right knee, a form of arthritis, which is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Right Knee Disability The Veteran asserts that his right knee disability had its onset during active duty and symptoms of the disability have been continuous since that time. The Veteran is diagnosed with numerous right knee disabilities, to include, degenerative joint disease, valgus deformity, and medial and lateral joint space collapse (with greater collapse laterally on flexion weightbearing). See e.g., private treatment records beginning in 2012 to the present. He underwent a total right knee arthroplasty in July 2014. After a careful review, the Board finds that the competent and credible evidence supports a finding that the Veteran’s right knee disability had its onset in service and symptoms of degenerative arthritis have been continuous since his discharge from active duty. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of a right knee disability; however, as discussed below, the Board finds the Veteran’s lay assertions regarding the onset of right knee injury to be both competent and credible. In support of his original March 1971 claim for compensation, the Veteran submitted a December 1969 orthopedic evaluation authored by an orthopedic surgeon, Dr. Bordelon. The evaluation noted that the Veteran fell approximately 6-months earlier while playing softball in the Navy, twisting his leg to the right. The Veteran reported that he felt the leg pop out of place and was unable to stand on it. He further noted that he reported to “sick-bay” and blood was removed from the leg and a splint was applied and he was discharged from service in September 1969, at which time he was told to report to the VA administration. The Veteran further described difficulty standing due to pain behind the right knee and occasional swelling on the outside of the knee. He noted one episode of severe giving way and effusion one month following the initial injury. He also had a feeling of weakness and giving way of the right knee since the injury, but no additional severe episodes of giving way or effusion. During the orthopedic consultation, slight ligamentous instability of the medial side of the knee was noted. The orthopedic surgeon opined that the Veteran apparently sustained a strain of the medial collateral ligaments of the right knee and exhibited some slight increased instability as compared to the opposite knee, but with no definite evidence of a physical impairment. The orthopedic surgeon added that there was always the chance that the Veteran may have torn a cartilage or may have difficulty later, at the time of the examination there was no evidence of a serious difficulty with the right knee. The orthopedic surgeon stated that based on this, a physical impairment of 6 percent was assigned for the right lower extremity on a permanent basis. In a March 1971 statement in support of claim, only six months following his discharge from active duty service, the Veteran reported that he hurt his knee inservice. He stated that he was playing softball at a Ship’s party while stationed in Naples, Italy, in the summer or early spring of 1969, where he turned going from one base to another, slipped, and his body went in one direction while his right leg went in the opposite direction. He stated that he was carried by fellow sailors to sick bay on board USS Sylvania offshore, where his knee was wrapped up and he was given pain killers to help him sleep. He added that three or four days later, blood was extracted from his right knee and he was put in a semi-cast to hold his right leg elevated for approximately six or seven days, at which time it was removed and got a little better. He stated that he did not file a claim because he could not take off work, but did see an orthopedic surgeon Dr. Bordelon in December 1969, only two months after separation from active duty. Lastly, he indicated that for a while his knee did not bother him as much except during certain movements, but once it started to bother him more often, he was advised to file a claim for compensation. Private treatment records dated in November 2012 showed that the Veteran complained of bilateral moderate knee pain that was described as “acute and has been occurring in a persistent pattern for years.” The medical professional indicated that the right knee was operated on previously and a review of his records revealed degenerative arthritis of both knees as well as valgus deformity. It was noted that his initial injury of the right knee occurred in the service approximately in 1970 and he had intermittent problems with this knee since that time. Physical examination of the knee revealed valgus deformity with crepitation laterally, worse on the right side. There was no evidence of effusion; gross instability; increased heat; inflammation; and, induration. Range of motion caused significant crepitation of the patellofemoral and lateral joints. Subsequent treatment records dated in January 2013 showed that the medical professional again reviewed x-rays of the right knee after the Veteran received a few injections, and stated, that both the medial and lateral joints were collapsed, so a knee brace may provide some stability on uneven grounds. In a February 2013 statement, Dr. Butaud opined that the Veteran’s right knee problems were directly related to the injury he sustained in service. It was explained that he had degenerative joint disease, which was consistent with the history he had given regarding a ligament injury and the knee locking which required a [meniscectomy] leading to the degenerative arthritis. In an additional February 2013 statement, the Veteran’s friend stated that they were friends for many years, during which time he noticed the Veteran’s struggles with his knee, and the Veteran continuously complained of knee pain. In an additional statement, another friend stated that he knew the Veteran since childhood, noticed that upon his return from service he had a noticeable limp in his right leg. He further stated that the Veteran required using a brace since that time when hunting or fishing, and required a surgery in 1973 after his knee locked up. The Veteran’s friend is competent to report what he has observed. In an April 2013 statement, a seal-stamped note from Opelousas General Hospital indicated that the Veteran’s treatment records from 1973 were destroyed due to hospital policy of keeping records for only 10 years. In a statement dated in June 2013 authored by a medical professional who treated the Veteran, it was noted that the Veteran was a patient for approximately ten-years, where he received care for his knee and back problems. In his August 2013 notice of disagreement, the Veteran stated that his knee was not properly evaluated and treated at the Naval Air Station – Naples Italy Hospital. He indicated that his knee popped out of the joint and he believed that the treatment he got caused his knee to not heal properly. He stated that his symptoms progressed and in 1973 his knee locked and required surgery, and since that time his knee continued to bother him. In a statement dated in March 2014, Dr. Butaud again stated that after review of the records and history, it was apparent that the Veteran sustained a ligament injury to the right knee, since he had immediate swelling post-injury and was unable to ambulate. In addition, 48-hours later, blood was removed from the knee, leading [the doctor] to believe that he had intra-articular ligament damage, most likely being the ACL along with partial injury to the MCL and meniscal pathology. The doctor concluded that the evidence supports that this was a triad consistent with instability which leads to known [arthritic] changes later in life. Private treatment records dated in July 2014 indicate that the Veteran underwent a right total knee arthroplasty with use of navigational system. The pre-and-postoperative diagnosis was right knee degenerative joint disease. In a statement dated in August 2014, Dr. Clause stated based on review the past medical history, the Veteran’s status-post triamcinolone acetate (TCA) in July 2011 was secondary to the post-traumatic injuries he sustained in-service. Thereafter, in his March 2015 substantive appeal, the Veteran stated that his symptoms were present in-service, right after service, and continued to the present day. Based on the foregoing, the Board finds that service connection on a presumptive basis is warranted. While additional development could be undertaken for an attempt to retrieve additional treatment records from the time of the initial injury in service, the Board finds that Veteran’s lay assertions in this case to be both competent and credible despite the lack of documentation of the injury in his service treatment records. He has consistently and continuously referenced his in-service injury beginning in December 1969, only two months after his discharge from service. Additionally, the Veteran submitted opinions from treating orthopedic surgeons who determined, based on his lay assertions and review of the available medical evidence, that his currently diagnosed right knee disability is directly related to his reported in-service injury. Lastly, the Veteran and others asserted that his symptoms were present immediately after his discharge from service and have been continuous since that time. As the medical evidence shows that the Veteran is currently diagnosed with arthritis of the right knee with continuous symptoms of pain since service, entitlement to service connection is presumed based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Since the preponderance of the evidence supports the grant for service connection on a presumptive basis, discussion of any other theories of entitlement is unnecessary. REASONS FOR REMAND In light of the Board’s decision herein, granting service connection for a right knee disability, a remand is necessary to determine whether the Veteran’s back disability is related to his now service-connected right knee disability. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA, and with his consent, obtain any outstanding records from any identified private healthcare providers who provided treatment for his claimed back disability. 2. Thereafter, provide the Veteran with a VA examination to determine the nature and etiology of his low back disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed low back disabilities since the October 2012 date of claim. (b) For each currently diagnosed low back disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) was caused by or aggravated by his now service-connected right knee disability. A complete rationale should be provided for all opinions on both causation AND aggravation. 3. Thereafter, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel