Citation Nr: 1807502 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-22 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a bilateral knee disorder, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1993 to January 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2011 rating decision of the Waco, Texas, Regional Office (RO). In January 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript is in the record. In November 2011 the RO confirmed its June 2008 denial of the claim of service connection for ACL reconstruction of the right knee and entitlement to service connection for the left knee. In November 2012, the Veteran filed a timely notice of disagreement (NOD) as to the denial of these claims. A notice of appeal (Form 9) was submitted May 2014, and the issues are properly before the Board. When reviewing applications to reopen a previously denied claim, the Board must address whether new and material evidence has been received before addressing its merits, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The claim for entitlement to service-connection for a bilateral knee disorder is reopened and denied. FINDINGS OF FACT 1. Evidence received since the June 2008 rating decision, the most recent final decision, is relevant to the basis for the denial of the prior claim for a bilateral knee disorder. 2. The Veteran is not presumed sound on service entrance as to any preexisting right knee disorder. 3. The Veteran's preexisting right knee disorder was not permanently aggravated by his active service. 4. The Veteran's left knee disorder is the result of a 2008 altercation and is not caused by or related to an in-service event or injury. CONCLUSION OF LAW 1. The June 2008 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the June 2008 rating decision is new and material for purposes of reopening the claim for service connection for a bilateral knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a bilateral knee condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service connection for a bilateral knee disorder was last denied by a June 2008 rating decision based on a determination that no new and material evidence was submitted to reopen the claim for the right knee and the record showed no permanent residual or chronic disability of the left knee. The RO also noted that the Veteran had not submitted evidence of a current left knee disability. The Veteran submitted a timely NOD in August 2008 but did not appeal a June 2009 Statement of the Case (SOC). The decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. "New" evidence is evidence not previously submitted to agency decision makers. Evidence is "material" if it relates to an unestablished fact necessary to substantiate the claim. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Since the Veteran's claim for service connection for a bilateral knee disorder was last denied, he has provided a private medical opinion relating his bilateral knee disorder to service. This is new and material evidence relevant to the basis for the denial of the prior claim for a bilateral knee disorder, therefore it is reopened. In general, entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a). A veteran who served on active duty after December 31, 1946, is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Here, upon his entrance into service, the Veteran was noted to have had a right knee ACL reconstruction. He is therefore not presumed to have been sound upon entrance into service. On his August 1993 pre-service entrance medical history questionnaire, the Veteran reported that in December 1991he underwent right knee surgery, which resulted in an ACL reconstruction. The Veteran's August 1993 pre-service entrance medical examination indicates that he had pain in the right knee and was unable to knee walk. The Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. See generally Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)); also e.g., Army Regulation 40-501, December 2007 and update August 2010. The report of medical examination indicates that service medical examiners recommended that the Veteran undergo radiographic examinations and consultation with an orthopedic surgeon. On orthopedic examination in August 1993, the Veteran had no functional instability or symptoms related to his preexisting ACL reconstruction. A radiographic examination showed screws in the femur and tibia. Although the abnormalities were noted, the orthopedic examiner found that the Veteran was fit for duty. In a December 3, 1993, service department record of medical care, the Veteran complained of gradual onset of grinding pain in his right knee with marching and running. Instability was present anteriorly, and the Veteran was diagnosed with slight right knee instability. A December 6, 1993, request for consultation noted that the Veteran was unable to run or do physical training (PT) because of bilateral knee pain due to reconstruction on both knees. In January 1994, a service medical examiner diagnosed the Veteran with "patello femoral pain secondary to previous anterior cruciate ligament repair" and found that his right knee disorder preexisted and was not aggravated by service. The Veteran's left knee was also tender along the periphery with medial joint line tenderness. The Veteran was discharged from active service because he "did not meet procurement med[ical] fitness standards." The Veteran clearly reported a surgery of the right knee during his service entrance examination. Investigation by military medical examiners resulted in a noting of clinical evidence of the procedure and residual pain. Although the Veteran was accepted for service, he is not presumed sound upon service entry. The remaining question is whether the evidence of record shows that the Veteran's preexisting right knee disorder was permanently aggravated beyond its natural progression during active service. Under 38 U.S.C.A. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). To support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). With regard to the both knees, the record shows no in-service injury or event. The Veteran contends that his preexisting right knee disorder was permanently aggravated by service, and his left knee disorder is due to compensating for his right knee. A June 1992 preservice, post-surgical medical examination noted a totally successful reconstruction by monitoring standards. However, the Veteran reported pain when playing basketball and running. The physician reported that it was not uncommon for the physician's monitoring and the patient's functional evaluation of the knee to differ. He estimated the Veteran's functional level to be in the 50th percentile. Although not dispositive, the January 1994 in-service examination found that the Veteran's preexisting right knee condition was not aggravated by active service. February 2008 to January 2012 private orthopedic treatment records indicate that the Veteran sought treatment for a buckling injury to the left knee sustained in an altercation in 2008. He reported a subsequent ACL reconstruction but no rehabilitation. With regard to the right knee, the Veteran reported "relatively constant pain in the medial and lateral aspects of the knee since service". The Veteran underwent a VA examination in August 2011. The VA examiner noted the Veteran's report of his pre-military service surgery, of engaging in warehouse work since separation, and of chronic pain and with giving out and instability in the right knee. The Veteran reported pain in the left knee that began in 2006 and progressed to the need for surgery for an ACL disruption in 2008. X-rays of the knees showed hardware related to bilateral ACL repairs and no evidence of degenerative joint disease. VA records indicated an evaluation by Orthopedics at the VA which found no instability in either knee and diagnosed the anterior pain syndrome bilaterally. With regard to the right knee, the examiner opined that "there is no evidence in the service medical record that this [was] significantly aggravated by active military service." Though left knee pain was noted in service, the examiner stated that the record also contains evaluations showing no instability in the left knee. Additionally, disruption of the left ACL did not occur for over ten years after separation. The examiner opined that bilateral knee disorders were not caused or aggravated by service. An April 2012 medical opinion connected the Veteran's bilateral knee disorders to service. The practitioner stated that the Veteran's bilateral ACL tears occurred on active duty and resulted in his medical discharge, which in turn caused him to be permanently disabled. The examiner's opinion is based on the inaccurate premise that the Veteran sustained in-service injuries. It is therefore assigned no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.). During his January 2017 hearing, the Veteran testified that problems with his left knee began after service due to compensation for his right knee. He testified that his private physician told him that his preexisting right knee problem was aggravated by his service and his left knee disorder was caused by the right knee disorder. However, those determinations were not reflected in the record. The record was help open for a period of 60 days following his hearing to afford him an opportunity to supply medical opinions in support of his claim, but an opinion was not forthcoming. A preponderance of the evidence is against a finding that the Veteran's preexisting right knee disorder was permanently aggravated beyond its normal progression during active service. The Veteran's service treatment records specifically indicate that his preexisting right knee disorder was not aggravated by active service. The Veteran did not seek treatment for his right knee between service separation and his 2008 left knee injury - approximately 14 years. The Veteran's private orthopedic doctor has neither indicated that the Veteran's preexisting right knee disorder was aggravated by approximately three months in service nor has his left knee disorder been found by competent medical opinion the result of his right knee injury. In fact, the Veteran himself reported that his left knee disorder is the result of a 2008 altercation. The Veteran's lay statements in pursuit of medical treatment are to highly probative and persuasive evidence. Therefore, service connection is not warranted and the claim is denied. ORDER Reopening of the claim of service connection for a bilateral knee disorder is granted. Service connection for a bilateral knee disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs