Citation Nr: 18161107 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-05 476 DATE: December 28, 2018 ORDER The application to reopen a previously denied claim for service connection for bilateral knee disability to include chondromalacia, and anterior cruciate ligament (ACL) tear of the left knee, is granted. REMANDED Entitlement to service connection for bilateral knee disability is remanded. FINDINGS OF FACT 1. In an April 2003 rating decision, the RO denied the Veteran’s application to reopen his claim for entitlement to service connection for bilateral knee disability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the April 2003 rating decision relates to the prior basis for the denial and tends to raise a reasonable possibility of substantiating the claim of service connection for bilateral knee disability. CONCLUSIONS OF LAW 1. The April 2003 rating decision that denied the claim of entitlement to service connection for bilateral knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The additional evidence received since the April 2003 decision is new and material, and the claim of service connection for bilateral knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1970 to September 1970. These matters come before the Board of Veterans Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a transcript of the hearing is associated with the claims file. 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for bilateral knee condition to include chondromalacia, and ACL tear of the left knee Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, new and material evidence has been received. The Veteran’s claim for service connection for bilateral knee disability was denied because there was no evidence that the Veteran’s bilateral knee disability had been aggravated beyond the natural progression of the disease due to service. To reopen the claim, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In an April 2003 rating decision, the RO denied the Veteran’s application to reopen his claim for service connection for bilateral knee disability. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the April 2003 rating decision is final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the April 2003 rating decision included the Veteran’s service treatment records (STRs), post-service VA treatment records indicating bilateral knee disability in March 1971, and the Veteran’s statements alleging that his bilateral knees had been aggravated by service. Relevant evidence received more than one year since the April 2003 rating decision includes a May 2015 private treatment record noting that the Veteran “was adamant” that he injured his right knee during service, and that the STRs were incorrect in listing that he injured his left knee. The physician noted that while he did not treat the Veteran at the time and did not know exactly what had happened, the Veteran had documentation that he injured his knee, and based on the Veteran’s statements to him, he was “sure his training and activities in the military aggravated” his knee. The Board finds that the additional evidence submitted since the April 2003 rating decision is new and material evidence that relates to unestablished facts necessary to substantiate the merits of the claim. Reopening of the claim for service connection for bilateral knee disability is therefore warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee disability. When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by 38 U.S.C. § 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (citing Bernard v. Brown, 4 Vet. App. 4 Vet. App. 384, 390 (1993) and Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996)). See also Sprinkle v. Shinseki, 733 F.3d 1180, 1183–84 (Fed. Cir. 2013) (noting that veterans’ claims are initially developed and adjudicated by the RO and the reviewed on appeal by the Board, and that, “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance”). Here, the Board finds that it would be prejudicial to the Veteran to decide the merits of the claim. There are several questions that require clarification, which must be addressed by the RO in the first instance, with the assistance of medical opinions. STRs in May 1970 contain a pre-enlistment examination report noting a history of Osgood-Schlatter bilaterally with occasional ache. The clinical evaluation was normal and the Veteran was deemed qualified for enlistment. In August 1970, the Veteran complained of discomfort in the anterior portion of the left leg from an old football injury. An orthopedic evaluation noted pain in the bilateral knees, left greater than right, since an old football injury. An examination revealed that the left knee gave out and was swollen, and the physician assessed old lateral collateral and ACL tear; and bilateral chondromalacia. An August 1970 Medical Board Report noted the diagnoses of old lateral collateral and ACL tear of the left knee; and bilateral chondromalacia. The Veteran reported an injury to his left leg while playing football. During basic training, the Veteran had symptoms of swelling in his left knee with giving away; and pain in both knees, with left knee worse than right knee. The physician noted that the same symptoms were present prior to the Veteran entering service. Physical examination showed bilateral anterior tibial tenderness and swelling with bilateral severe patellofemoral crepitance. There was medial joint line tenderness in the left knee greater than the right, and the collateral and ACL were lax on the left. X-rays were negative. The examiner found that the “above medical condition existed prior to entry into service and had not been aggravated by service beyond the normal progression of the disease.” Post-service VA treatment records reflect a March 1971 injury to the left knee while the Veteran played basketball, whereupon the Veteran was placed in a circular cast. VA treatment records in January 2014 reflect that the Veteran “broke his knee” while in prison and had right knee ACL/MCL surgery to repair it. The Veteran is currently diagnosed with arthritis in the bilateral knees and meniscus tear in the right knee. Private treatment records in April 2015 and May 2015 reflect evaluations for the right knee. The Veteran was “adamant about making sure that the VA knows” that he injured his right knee during service, and that the STRs documented injury to the wrong knee. He reported that he tore his ACL in his right knee during service. The physician noted that “obviously [he] did not see him back then and [he had] no idea exactly what happened, but he did have paperwork saying that he injured his knee, but it was just labeled as the wrong knee.” The physician stated that “it was indeed the right knee and [he was] sure his training and activities in the military aggravated this as well.” During his June 2017 hearing, the Veteran testified that he played football in high school but never injured his knees. He stated that the STRs notation that he injured his ACL from playing football was due to a miscommunication. In addition, he testified that he injured his right knee during basic training, not his left knee, and that he had been trying to change his STRs for years to reflect this. The Board notes that the Veteran has never been afforded a VA examination, and that there is no medical opinion addressing the nature and etiology of the Veteran’s current disabilities. Therefore, a remand is required to address whether the notation of Osgood Schlatter’s disease constitutes a notation for purposes of determining whether the presumption of soundness attached. If it is not such a notation, then the presumption did not attach, the Veteran is presumed sound, and the question is whether his current knee disabilities are related to his military service. If it is such a notation, the question is whether the preexisting knee disorder was aggravated by service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of his bilateral knee disability. The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND. The examiner should address the following: (a.) Should the notation of Osgood Schlatter’s disease on the pre-enlistment examination report be considered a notation of the same defect, infirmity, or disorder with which the Veteran is currently diagnosed? In other words, are the current knee disabilities related to the Osgood Schlatter’s disease? (b.) If there is no relationship between the current disabilities and the Osgood Schlatter’s disease and the Veteran is therefore presumed to have been in sound condition with regard to the knees when he entered service, what disabilities of the knees does he have now, and are any of his knee disabilities at least as likely as not related to his military service, to include an injury from fall during basic training, as well as the marching and running during service. (c.) If the Osgood Schlatter’s disease is related to the current knee disabilities and the Veteran is therefore not presumed to have been in sound condition with regard to the knees when he entered service, did the Veteran’s injuries from a fall during basic training, as well as marching and running during service, worsen his preexisting knee condition. If it did, was there clear and unmistakable evidence that the worsening was due to the natural progression of the disease. The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel