Citation Nr: 18106937 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-10 090 DATE: June 1, 2018 ORDER Entitlement to service connection for left knee status post arthroscopy with partial lateral meniscectomy, degenerative arthritis and chondromalacia patellae, is granted. Entitlement to service connection for right knee status post arthroscopy with partial lateral meniscectomy, degenerative arthritis and chondromalacia patellae, is granted. FINDINGS OF FACTS 1. An unappealed August 2009 rating decision denied service connection for a right and left knee contusion, claimed as a right and left knee injury. The Veteran did not appeal. 2. Evidence received since the August 2009 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claims of entitlement to service connection for a right and left knee condition. 3. Resolving all doubt in favor of the Veteran, a bilateral knee condition is related to service. CONCLUSIONS OF LAW 1. The August 2009 rating decision which denied service connection for a right and left knee contusion is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the August 2009 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right and left knee condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for right knee status post arthroscopy with partial lateral meniscectomy, with degenerative arthritis and chondromalacia patellae, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for left knee status post arthroscopy with partial lateral meniscectomy, with degenerative arthritis and chondromalacia patellae, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to September 1994, January 2003 to May 2005, June 2005 to September 2005, October 2005 to March 2006, April 2006 to September 2006, and March 2007 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned in March 2017. A transcript is of record. New and Material Evidence The Veteran petitions to reopen his previously denied service connection claims for right and left knee conditions. For the following reasons, the Board finds that reopening is warranted. Service connection for a right and left knee condition was previously denied in an August 2009 rating decision because there was no evidence of a chronic disability involving his right and left knees. The Veteran was notified of the August 2009 rating decision and of his appellate rights by letter dated August 27, 2009. New and material evidence was not of record within one year of this decision. See 38 C.F.R. § 3.156(b). The Veteran submitted a notice of disagreement in July 2011. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for perfecting an appeal). In a December 2011 letter, the RO notified the Veteran that his July 2011 notice of disagreement was not timely as it was not received within one year of the August 27, 2009 notice letter. The RO also notified the Veteran of his appellate rights as to the timeliness of the NOD issue. The Veteran did not appeal this determination. Accordingly, the August 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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). The new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran submitted a March 2015 medical opinion from Donald Dewey, M.D. relating his degenerative arthritis of the knees and chondromalacia patellae to an in-service knee injury in 1981. At the time of the August 2009 rating decision, there was no medical evidence of a current knee disability or medical nexus opinion. Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to unestablished facts necessary to substantiate the claims for service connection for right and left knee disorders, and raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.356(a). As noted above, the credibility of the evidence is also presumed. Therefore, the claims are reopened. Service Connection Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As to a current disability, in March 2015 Dr. Dewey noted that the Veteran had degenerative arthritis of the knees and chondromalacia patellae. Regarding the second element of direct service connection, at his March 2017 Board Hearing, the Veteran testified that he began to experience bilateral knee issues during Officer Candidate School and that he continued to have bilateral knee problems during active duty. Indeed, his service treatment records reflect a history of treatment for bilateral knee trauma and subsequent bilateral knee complaints. Regarding the third element, in March 2015 Dr. Dewey provided an opinion noting that the Veteran’s original bilateral knee trauma in 1981 continued to progress into his current bilateral knee issues. The service records reflect that the Veteran sustained bilateral knee trauma and that he continued to experience bilateral knee symptoms throughout his military career. The Veteran has been diagnosed with degenerative arthritis of the knees and chondromalacia patellae. Dr. Dewey has providing a competent medical opinion that links the Veteran’s bilateral knee issues to the knee trauma he sustained while in service. The Board acknowledges that there is a negative VA medical nexus opinion of record dated in August 2012. However, even if the Board were to find this opinion probative, the evidence would at least be in equipoise. Under such circumstances, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection is warranted for a bilateral knee disability, diagnosed as status post arthroscopy with partial lateral meniscectomy of the right and left knees with degenerative arthritis and chondromalacia patellae. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel