Citation Nr: 18106947 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-08 438 DATE: June 1, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for left knee chondromalacia is reopened. New and material evidence having been received, the claim for entitlement to service connection for right knee chondromalacia is reopened. Entitlement to service connection for left knee chondromalacia is granted. Entitlement to service connection for right knee chondromalacia is granted. FINDINGS OF FACT 1. By a May 1988 rating decision, the RO denied the Veteran’s claim for service connection for left knee chondromalacia. The Veteran was advised of the RO’s decision and of his appellate rights. The Veteran did not initiate an appeal of the RO’s decision. 2. Evidence associated with the claims file since the May 1988 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left knee chondromalacia. 3. By a May 1988 rating decision, the RO denied the Veteran’s claim for service connection for right knee chondromalacia. The Veteran was advised of the RO’s decision and of his appellate rights. The Veteran did not initiate an appeal of the RO’s decision. 4. Evidence associated with the claims file since the May 1988 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right knee chondromalacia. 5. Left knee chondromalacia was manifest in service. Left knee chondromalacia is attributable to service. 6. Right knee chondromalacia was manifest in service. Right knee chondromalacia is attributable to service. CONCLUSIONS OF LAW 1. The Regional Office’s (RO’s) May 1988 rating decision denying service connection for left knee chondromalacia is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302(a), 20.1103 (2017). 2. As pertinent evidence received since the May 1988 denial is new and material, the criteria for reopening the claim for entitlement to service connection for left knee chondromalacia are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The RO’s May 1988 rating decision denying service connection for right knee chondromalacia is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302(a), 20.1103 (2017). 4. As pertinent evidence received since the May 1988 denial is new and material, the criteria for reopening the claim for entitlement to service connection for right knee chondromalacia are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for left knee chondromalacia have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6, The criteria for service connection for right knee chondromalacia have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1975 to December 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) RO in Waco, Texas. A review of the record reveals that the two issues in this case have been characterized in various ways. As reflected above, the Board has recharacterized the service connection issues as left knee chondromalacia and right knee chondromalacia to address most fully and efficaciously the benefits sought by the Veteran, as evinced in the evidence of record. In this respect, the Board observes that the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Whether new and material evidence has been received to reopen the claim for service connection for left knee chondromalacia. 2. Whether new and material evidence has been received to reopen the claim for service connection for right knee chondromalacia. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “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). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118 Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the May 1988 rating decision, which denied service connection for left and right knee chondromalacia, the evidence of record consisted of the Veteran’s service treatment records (STRs) and a VA Report of Medical Examination for Disability Evaluation. The RO denied service connection on examination findings to the effect that both knees exhibited full range of motion (ROM) and x-ray imaging revealed no abnormalities. The Veteran was properly notified of the May 1988 rating decision in May 1988, but did not file a notice of disagreement within one year of the issuance of the rating decision—by May 11, 1989. Consequently, that rating decision became final based upon the evidence of record at that time. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. New and material evidence to reopen the service connection claims for left knee and right knee chondromalacia has been received. Since the May 1988 rating decision, the evidence received into the record includes an October 2013 private magnetic resonance imaging (MRI) diagnostic report of the left and right knees. As the October 2013 MRI Diagnostic Report relates to unestablished facts necessary to substantiate the left knee and right knee chondromalacia claims, the evidence raises a reasonable possibility of substantiating the claims. Therefore, the evidence is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Entitlement to service connection for left knee chondromalacia. 4. Entitlement to service connection for right knee chondromalacia. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence—about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including chondromalacia, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran avers that he is entitled to service connection for current left knee chondromalacia and current right knee chondromalacia. Specifically, he contends that left and right knee chondromalacia were incurred in active service. A review of the Veteran’s STRs shows that he complained of both left and right patellar pain while in active service. In a January 1979 Report of Medical Examination, a clinician wrote, as a qualification to the status of the Veteran’s lower extremities, “chondromalacia patellae, left worst.” (The Board observes that both the right and left knee fall within the ambit of this qualification, as the Latin suffix “ae” indicates plurals, i.e., both patella of the knee.) In an associated Report of Medical History, this clinician opined that the Veteran reported that his left knee pops and grinds with motion. In May 1979, the Veteran sought treatment for left knee pain and a clinician noted “probably chondromalacia.” In 1983 and 1984, the Veteran complained of right knee discomfort, exacerbated by activities involving movement of the right knee. The Veteran also reported stiffness, buckling, and throbbing pain. A record from March 1985 indicated that the Veteran complained of right knee pain during ambulation or bending. A clinician noted localized pain; edema and erythema; tenderness; as well as pain upon flexion, extension and palpation. In the February 1988 VA Report of Medical Examination for Disability Examination, upon which the RO largely based denial of service connection, the examiner opined that the Veteran reported that he experienced left knee pain and stiffness “off and on.” In the October 2013 MRI Diagnostic Report, a private radiologist opined initially that the Veteran had a clinical history of bilateral knee pain and effusion. Upon review of the findings derived from multiplanar imaging, the radiologist’s diagnostic impressions included chondromalacia in the left knee medial compartment and chondromalacia in the right knee medial compartment. While these impressions were not severe, there were contributory impressions of joint effusion, tears in the menisci, and medial plicae. In short, the Board observes that the radiologist’s diagnostic impressions, in pertinent part, reflected symptomatology reported in the Veteran’s STRs, as discussed above. The Board recognizes that the medical evidence concerning left knee and right knee chondromalacia is less-than-comprehensive from the 1988 VA Examination to the 2013 MRI Diagnostic Report; however, the evidence of record shows that the Veteran did not “abandon” his contentions as to service-incurred left knee and right knee chondromalacia. As early as July 1992, the Veteran submitted a request to reopen his claim for service connection, writing that his STRs will show that knee problems occurred during active duty. The Veteran reiterated this precise contention in his March 2015 Substantive Appeal (VA Form 9). And, in May 2015, the Veteran submitted a letter in response to the Supplemental Statement of the Case (SSOC). He wrote that the MRI Diagnostic Report documented soft tissue damage; something that was overlooked in the February 1988 VA Report altogether. He added that his previous denial had been, in large part, based upon x-ray imaging of “hard/bone tissue damage to his knees,” whereas he damaged soft tissue of the knees while in active service. Further, the Veteran emphasized that he had requested that his soft tissue record of complaints and treatment be reviewed, repeatedly. This bilateral knee soft tissue damage, according to the Veteran, has had an on-going impact on his life; the tissue of his left and right knees become swollen after any amount of exercise. Here, the Board notes that “chondromalacia” is defined as a “softening of the articular cartilage, most frequently in the patella.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1930 (32d Ed., 2012). The Veteran contends that he had left and right knee chondromalacia in service and this soft tissue malady has continued through the present. We agree. During service, the Veteran reported bilateral knee pain, tenderness and swelling; received clinicians’ impressions of chondromalacia; and sought treatment for an extended period of at least 6 years. Further, as a lay person, the Veteran is competent to report his medical history and discernable symptomatology. See Layno, supra. Here, we find the Veteran’s in-service reports wholly credible. Additionally, we find his post-service statements to be consistent and credible, especially where they concern soft knee tissue and not hard tissue (knee bones). See Jandreau, supra (providing that lay persons may be competent to identify a broken leg, but are not competent to diagnose cancer). In sum, the Board finds that the most probative evidence of record, as discussed above, warrants granting service connection for left knee chondromalacia and right knee chondromalacia. The Board finds that there is doubt as to the continuity of left and right knee chondromalacia and such doubt is resolved in favor of the Veteran. See 38 U.S.C. § 5.107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel