Citation Nr: 18160078 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-03 435 DATE: December 21, 2018 ORDER New and material evidence having been introduced, the claim for service connection for a left knee disability is reopened. Entitlement to service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left knee disability was denied in an April 1968 rating decision. The Veteran was informed of that decision and his appellate rights, but did not appeal or submit new and material evidence within one year. 2. Evidence received into the record since the April 1968 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a left knee disability. 3. The evidence demonstrates that the Veteran’s discharge from active duty service owed directly to aggravation of his left knee condition, which condition pre-existed entry into service. CONCLUSIONS OF LAW 1. The April 1968 rating decision denying entitlement to service connection for a left knee disability is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the April 1968 rating decision is new and material, and the claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1966 to November 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been introduced to reopen a claim of service connection for a left knee disability Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claim for service connection for a left disorder was denied in April 1968. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of his claim that shed additional light on his service and the nature of his disability. The Board finds this evidence “new,” because it postdates the aforementioned rating decision. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of service connection for a left knee disorder is reopened. 2. Entitlement to service connection for a left knee disability Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Essentially, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. VA’s Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. In this case, the record reveals the Veteran’s left knee was originally injured in 1962, prior to his induction into active duty service. The injury was noted at induction. However, service records show the Veteran suffered an in-service fall from a ladder in late 1967, injuring both knees. He was hospitalized for these injuries, and subsequently discharged from service based on the condition of his knees following the injury. More recent medical records reflect a current diagnosis of degenerative joint disease of the left knee. The Veteran has argued that his left knee disability, which pre-existed entry into service, was aggravated by the documented in-service injury. The Board agrees. Neither the fact of the in-service injury nor the basis of the Veteran’s discharge from active duty can be denied in this case. Although beset by a left knee disability, the Veteran was able to serve on active duty for over a year; following the accident, he was no longer able to do so, and service records list the condition of his left knee as the basis for his discharge. Given these facts, it can hardly be argued that clear and unmistakable evidence exists to rebut the presumption of aggravation. Accordingly, the Board finds that the Veteran’s current left knee disability is etiologically related to service, specifically to the in-service fall which caused aggravation beyond the normal course of progression. The Veteran’s discharge in the wake of that accident demonstrates such aggravation on its face. As such, service connection for a left knee disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability, to include as secondary to a left knee disability is remanded. The Veteran has averred that his left hip disability is etiologically related to his left knee disability. Having granted service connection for a left knee disability, the Board requires a VA examination be conducted to evaluate the etiological relationship between the Veteran’s hip problems and his service connected left knee disability. The matter is REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claim. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to ascertain the nature and etiology of his left hip disorder or disorders. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. a. Please identify by medical diagnosis the Veteran’s left hip disorder or disorders. b. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s hip condition began in service or is otherwise related to service. c. If it is determined that the Veteran’s diagnosed hip condition is not directly related to service, the examiner should state whether it is at least as likely as not that the hip condition has been caused or aggravated beyond its normal course of progression by the Veteran’s left knee disability. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel