Citation Nr: 1807415 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 537A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability, to include bursitis, mild degenerative joint disease and tear of the lateral meniscus. 3. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty May 1979 to July 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented testimony before the Board in October 2017. The transcript has been associated with the electronic record. As it pertains to the issue of service connection for a right knee disability, the Board notes that in an unappealed March 2009 rating decision service connection for right knee bursitis was denied. The record now contains diagnosis of mild degenerative joint disease of the right knee and tear of the lateral meniscus. These are new and distinct diagnoses from the one denied in March 2009 and are therefore considered a new claim. See Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). As the claim is being reopened in the decision herein and pursuant to Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000), the Board has recharacterized the issue of service connection for a right knee disability to include all disabilities. FINDINGS OF FACT 1. A March 2009 rating decision denied the claim for right knee bursitis; the Veteran did not perfect an appeal of that decision and no relevant evidence was received within one year of the decision. 2. The evidence submitted since the March 2009 rating decision is relevant and probative of the issue at hand. 3. The Veteran's right knee disability was not incurred service or for many years thereafter, and it is not shown to be related to his military service. 4. Sleep apnea is proximately due to or the result of the service-connected sinusitis. CONCLUSIONS OF LAW 1. The March 2009 rating decision, which denied service connection for right knee bursitis, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the March 2009 rating decision, which denied service connection for right knee bursitis, is new and material, and the claim for right knee disability is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 4. By extending the benefit of the doubt to the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the issues decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material The Veteran seeks to reopen a previously denied claim for service connection for right knee bursitis. By a March 2009 rating action, the RO denied the claim on the basis that there was no relationship between the Veteran's right knee bursitis and the right leg trauma incurred in service. The Veteran did not appeal the decision. 38 C.F.R. § 20.302(a). No relevant evidence was submitted within one year of the date on which notice of the decision was issued. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Accordingly, that decision is final. 38 U.S.C. § 7105. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). While the RO appeared to reopen the right knee claim in the July 2011 rating decision and confirm the prior denial, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At the time of the March 2009 rating decision, the record included service treatment records, which show the Veteran sought treatment in September 1997 for right leg trauma. He informed service providers that he had pulled over while driving his motorcycle because a bug had gotten caught in his eye and then his leg got trapped between the engine guard and the wall when he stopped to clear his eye. The Veteran was treated for a laceration. There were no complaints pertaining to the right knee at the time of the incident or during the remainder of his service. The February 2009 report of VA medical examination contained the first post-service complaints pertaining to the right knee. The Veteran was diagnosed with right knee bursitis, which the examiner found was less likely related to right leg trauma in service as there was no chronic treatment or continuity of care after the 1997 leg trauma. Since the March 2009 rating decision, new evidence has been added to the electronic record that is material to the Veteran's claim. Notably, the Veteran submitted a November 2017 private medical opinion indicating that the Veteran's right knee condition was the result of his military service. This evidence was not before the RO in March 2009 and it is not cumulative or redundant of evidence then of record. The medical evidence of record contains an etiology opinion that appears favorable to the Veteran's claim. The Board therefore finds that the new evidence is material, and that it raises a reasonable possibility of substantiating the claim. Moreover, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been added to the record and the claim must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Additionally, secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a) . Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id; Allen v. Brown, 7 Vet. App. 439 (1995). Right Knee The Veteran asserts that he has a right knee disability as result of an injury sustained during military service. The question of whether the Veteran has a right knee disability is not in dispute as he has been diagnosed with degenerative joint disease (DJD), meniscal tear, and bursitis. However, what is in question is whether the current disability is related to the Veteran's active duty service. In that regard, the service treatment records are negative for an injury to the right knee. A September 1997 entry does reveal the Veteran informed service providers that while driving his motorcycle a bug had gotten caught in his eye and when he pulled over to clear his eye, his leg got trapped between the engine guard and the wall. The Veteran was treated for a laceration and abrasion. There were no complaints pertaining to the right knee at the time of the incident or during the remainder of his service. To the extent that any argument is raised as to continuing or ongoing problems with the right knee since discharge from the military, the Veteran's service ended in July 2000, the first post-service documented finding of right knee pain and swelling due to bursitis was upon VA examination in 2009. The first radiographic evidence of DJD was in April 2009, which is clearly outside the one year presumptive period for arthritis. 38 C.F.R. §§ 3.307, 3.309. Further, the evidence of record reveals there was a prolonged period of time, nine years following the conclusion of his service without relevant medical complaint or treatment of the right knee. Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). As a right knee disability, including DJD and bursitis, were not shown during service or for many years thereafter, service connection may only be granted if there is competent and credible evidence otherwise linking or attributing the current disability owing to these conditions to the Veteran's service. See 38 C.F.R. § 3.303(d) (permitting the granting of service connection even when the initial diagnosis was post service, so long as the evidence, including that pertinent to service, establishes the disorder was incurred in service). Here, the preponderance of the evidence is against such a finding. After reviewing the claim file, including the Veteran's service treatment records, and with consideration of the Veteran's statements, the February 2009 VA examiner opined the right knee bursitis was not related to the right leg trauma while in service. The examiner reasoned there were no objective findings to show continuity of care or chronicity of treatment. Similarly, the December 2010 VA examiner opined right knee mild DJD and lateral meniscal tear were not caused by the right leg abrasion shown during service. The examiner reasoned that a single abrasion to the leg was not causal for the current condition and the abrasion was three inches below the knee. The VA examiners disassociated the right knee disability from the Veteran's service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's private physician opined in November 2017 that the Veteran's right knee chondromalacia patellar tendinopathy was caused by or a direct result of the Veteran's military service. The examiner indicated the Veteran's right knee was injured in a motorcycle accident while in the Navy. The examiner opined that excessive standing on ship decks, climbing up and down ladders, and physical work on the ship "most likely contributed to his right knee edema and pain." The Board finds that the probative value of the private opinion is diminished in light of the cumulative evidence of record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). First, while the physician indicated he reviewed the service treatment records, he failed to discuss that the objective medical evidence during service did not show any injury to his right knee. The physician also did not discuss the lack of right knee complaints following the 1997 right leg laceration or the nine year gap in treatment/complaints following his discharge. Second, the physician's opinion that it was "most likely" that the Veteran's military duties (standing, climbing, etc.) contributed to his right knee pain and edema is, in effect, speculative as to the etiologic relationship between the Veteran's right knee disability and service. Further, the physician referred to right knee pain and edema, none of which are disabilities but rather symptoms. Such an opinion is not probative and is not supported by the medical evidence of record. Finally, and significantly, while the physician stated he reviewed the service treatment records, he based his opinion on the fact that the Veteran injured his right knee in service, a fact not corroborated by the service treatment records. In fact, the only injury alleged is the injury to the right leg productive of a laceration three inches below the knee as noted in the service treatment records. Again, the examiner failed to discuss the lack of right knee complaints during service and the gap in treatment following discharge. Thus, the private opinion, although essentially favorable to the Veteran's claim, is of little probative or persuasive value in view of the totality of the evidence. The Veteran's statements are not competent evidence to determine whether a right knee disability is related to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A right knee disability was not diagnosed during service or for many years thereafter. The preponderance of the medical evidence of record does not support a finding that the right knee disability is related or attributable to the Veteran's active duty service, including right leg trauma. Accordingly, service connection for a right knee disability must be denied. 38 C.F.R. § 3.303. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for right knee disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sleep Apnea The Veteran is claiming entitlement to service connection for sleep apnea. Specifically, he contends the condition is secondary to his service-connected sinusitis and/or anxiety disorder. Considering the evidence of record, summarized in pertinent part below, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. 38 C.F.R. § 3.102. Notably, service connection is currently in effect for chronic maxillary sinusitis. The Board is cognizant that the June 2014 VA examiner opined that sleep apnea was not proximately due to, the result of, or aggravated by the Veteran's service-connected chronic sinusitis. However, the examiner also indicated that the Veteran did not currently have physical findings, complications, or any signs or symptoms related to the sleep apnea and thus, it was not shown to exist. Clearly, this is contradictory to the evidence of record showing a diagnosis of sleep apnea and treatment with a CPAP machine. Whereas, the Veteran's private treating physician, after reviewing the record, opined that the Veteran was treating for chronic sinusitis (as well as nasal polyps) which was a contributing factor to his snoring and obstructive sleep apnea. Based on this opinion, there is evidence the Veteran's sleep apnea is due, at least in part, to his sinusitis. The Board finds that the evidence is at least in equipoise in showing that the Veteran's sleep apnea is related to his service-connected sinusitis. Resolving any doubt in the Veteran's favor, service connection for sleep apnea is warranted. 38 C.F.R. § 3.102. ORDER The application to reopen the claim for service connection for right knee disability is granted. Service connection for right knee disability is denied. Service connection for sleep apnea is granted. ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs