Citation Nr: 18120237 Decision Date: 07/20/18 Archive Date: 07/20/18 DOCKET NO. 15-17 177 DATE: July 20, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, and service connection for a left knee disability characterized as chondromalacia of the left knee is granted. Entitlement to service connection for traumatic brain injury (TBI) with headaches is denied. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression secondary to facial scarring is denied. FINDINGS OF FACT 1. A claim for service connection for a left knee disability was denied in an unappealed January 2005 rating decision. 2. The evidence received since the January 2005 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating the claim for service connection for a left knee disability. 3. Resolving all reasonable doubt in the Veteran’s favor, his left knee disability characterized as chondromalacia of the left knee is at least as likely as not aggravated by his active duty service. 4. The Veteran does not have a current diagnosis of TBI. 5. The Veteran does not have a current diagnosis of a psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2005 rating decision, which denied service connection for a left knee disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the January 2005 rating decision to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a left knee disability characterized as chondromalacia of the left knee are met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 4. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 5. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 2000 to January 2005 and received multiple awards and medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC. New and Material 1. Whether new and material evidence has been received to reopen a claim of service connection for left knee disability In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 C.F.R. § 5108. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In January 2005, the RO denied service connection for a left knee disability essentially based on a finding that the disability was not related to service. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since that time, relevant additional evidence suggests a nexus between a currently diagnosed left knee disability and military service. This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus, new and material. 38 C.F.R. § 3.156(a). Thus, the claim is reopened. Service Connection Service connection may be granted for a 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 may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Certain chronic diseases such as arthritis and psychoses, but not other acquired psychiatric disorders, are listed as chronic diseases under 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to the claims for service connection for an acquired psychiatric disorder other than a psychosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc). 2. Entitlement to service connection for a left knee disability The Veteran seeks service connection for a left knee disability, which he asserts was aggravated in service. In May 2012, the Veteran reported that he was initially treated for his bilateral knee degeneration while in entry level training, and he sought treatment for his bilateral knee degeneration numerous times throughout his Army service. In March 2014, the Veteran stated that during service he was a military policeman, a high energy, high impact specialty. The Veteran noted that even if he had a preexisting left knee injury, it was not severe enough to keep him from passing his in-processing physical. As noted, the Veteran served in the United States Army from January 2000 to January 2005. A December 1999 enlistment Report of Medical Examination indicates that the Veteran’s lower extremities were normal, and the Veteran had a scar on his left knee. A December 1999 enlistment Report of Medical History reflects that the Veteran had stiches in his left knee from age nine. The examiner noted that there was no sequalae and no significant medical history was presented. A May 2001 service treatment record reflects a diagnosis of chondromalacia patella. The Veteran complained of bilateral knee pain when running for one and a half years. The Veteran reported that he had surgery on his left knee approximately nine years earlier due to a football injury. The treatment provider noted that the Veteran had a three-inch scar on his left knee from surgery, and he had pain with resistance in his left knee. The treatment provider also noted that the Veteran had chronic knee pain, parapatellar pain, for approximately eight years, which was worse when running. A November 2001 service treatment record reflects a diagnosis of retropatellar pain syndrome (RPPS). The treatment provider noted that the Veteran did not have a recent trauma. The Veteran reported a sore left knee, and the treatment provider noted that the Veteran had surgery on his left knee when he was eight. The Veteran also reported bilateral pain, with no swelling. A December 2001 service treatment record reflects that the Veteran reported bilateral knee pain, with more swelling on his left knee especially after running. The Veteran had been given a temporary profile for running at his own pace and distance, but generally he continued to run with pain. An October 2004 expiration of term of service (ETS) Report of Medical History reflects that the Veteran reported that he had arthritis in his left knee. He reported that he still had pain in his left knee when he would run or stand for long periods of time. He also reported that he underwent left knee surgery when he was nine years old, and that he had been advised since being in the military that he might want to have surgery again. There is no evidence that arthritis of the left knee manifested to a compensable degree within one year of separation from service. Therefore, service connection for arthritis may not be presumed. 38 C.F.R. §§ 3.307, 3.309. The Veteran was afforded a VA examination in November 2004, which reflected a diagnosis of bilateral knee strain with a history of surgery on the Veteran’s left knee. The Veteran complained of swelling in his knees after running, which lasted for two to three days. He also complained of pain that radiated around his knee down into his calf. The Veteran reported that he had left knee surgery prior to military service. The examiner noted that he had a three-inch scar on his left knee. Physical examination revealed flexion to 140 degrees, and extension to 0 degrees. A November 2004 x-ray of the Veteran’s left knee revealed negative findings. A February 2008 private treatment record reflects a diagnosis of bilateral knee pain and bilateral patella chondromalacia. The treatment provider noted that x-rays of the Veteran’s left knee revealed no evidence of degenerative changes of the patella, and there was a fabella noted on the lateral view of the left knee. The treatment provider opined that the Veteran had been very active and was in the Army, and that had probably brought on a lot of his symptoms with running. The Veteran was afforded a VA examination in March 2013, which reflected a diagnosis of chondromalacia of the left knee from 1990. The Veteran reported that he severely injured his left knee playing football. The treatment provider opined that the Veteran’s left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claim in-service injury, event, or illness. The examiner noted that the Veteran had a previous injury to his left knee which required sutures. He did not believe that the Veteran’s left knee condition was aggravated by military and it progressed as part of its natural course. VA obtained an addendum opinion in March 2014 regarding whether the Veteran’s right knee strain condition was related to service. The March 2014 VA examiner opined that it was at least as likely as not that the Veteran’s right knee condition was related to military service. The examiner noted that there were numerous entries for bilateral peripatellar knee pain diagnosed as strain or as patellofemoral syndrome. Service connection for chondromalacia of the right knee was subsequently granted in a March 2014 rating decision. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting left knee condition, that there is not however, clear and unmistakable evidence that the preexisting left knee disability was not aggravated in service, and thus, service connection for a left knee disability characterized as chondromalacia of the left knee is warranted. There is clear and unmistakable evidence that a left knee condition preexisted service. Service treatment records from December 1999 indicate that the Veteran had a left knee condition, which preexisted service. A December 1999 enlistment Report of Medical Examination indicates that the Veteran’s lower extremities were normal, and the Veteran had a scar on his left knee. A December 1999 enlistment Report of Medical History reflects that the Veteran had had stiches in his left knee from age nine. The examiner noted that there was no sequelae and no significant medical history was presented. There is also subsequent evidence that the Veteran underwent left knee surgery prior to service. As there is clear and unmistakable evidence of a preexisting left knee condition, the burden falls on VA to establish that there is clear and unmistakable evidence that the preexisting left knee condition was not aggravated by service. Service treatment records reflect a diagnosis of chondromalacia patella from May 2001. Although service treatment records indicate that the Veteran had a preexisting left knee disability, the treatment records also reflect that the Veteran was treated for recurrent left knee symptomatology in service. Significantly, the Board notes that the Veteran’s service treatment records reflect that the Veteran’s bilateral knee condition was not caused by a specific injury or event. The Veteran has credibly stated that he aggravated his left knee in-service, that he continued to have a left knee condition since service. Private treatment records reflect that the Veteran was treated for a left knee condition from February 2008. Although the March 2013 VA examiner opined that the Veteran’s left knee condition was not aggravated in service, the examiner did not provide a sufficient analysis regarding the etiology of the Veteran’s left knee condition. Although the examiner stated that the left knee condition progressed as a part of its natural course, the examiner did not discuss the diagnosis of the Veteran’s left knee condition prior to service, and did not discuss how the Veteran’s diagnosis in service of strain or patellofemoral syndrome was part of the natural progression of the Veteran’s left knee condition prior to service. Nor did the examiner differentiate the Veteran’s right knee condition from the Veteran’s left knee condition. Notably, the March 2014 VA examiner indicated that the Veteran’s left knee and right knee were treated together, for bilateral peripatellar knee pain, diagnosed as strain or as patellofemoral syndrome during service. Further, the Board notes that the March 2014 VA examiner opined that the Veteran’s current chondromalacia of the right knee was at least as likely as not related to service. The examiner did not discuss any specific injury or event that caused the Veteran’s right knee condition, just that the Veteran had bilateral peripatellar knee pain in service, and the Veteran’s current chondromalacia of the right knee was related to service. Based on the foregoing, the Board finds that the evidence does not show clear and unmistakable evidence that the Veteran’s left knee condition was not aggravated by his service. As VA cannot rebut the second prong of establishing by clear and unmistakable evidence that the Veteran’s preexisting left knee condition was not aggravated by military service, the Veteran is presumed sound at entry into service. Therefore, the issue is whether the Veteran’s present chondromalacia of the left knee was incurred during his military service. See 38 C.F.R. § 3.304(b). Based on the evidence as outlined above, the Board finds that the Veteran’s present chondromalacia of the left knee was incurred during his military service. Therefore, resolving all reasonable doubt in favor the Veteran and based on the medical and lay evidence of record; including the Veteran’s service treatment records showing treatment for symptoms related to bilateral peripatellar knee pain, which was not caused by a specific event or injury, the February 2008 private treatment record, which indicated that running contributed to the Veteran’s knee condition, and the March 2014 VA opinion, which noted that the Veteran was treated for bilateral peripatellar knee pain, which was diagnosed as strain or as patellofemoral syndrome during service, supports a finding that service connection for chondromalacia of the left knee is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to service connection for traumatic brain injury (TBI) with headaches The Veteran seeks service connection for TBI and residuals thereof which he asserts is related to service. In May 2012, the Veteran stated that he suffered from signs and symptoms of TBI as a result of a motor vehicle accident where he was the passenger, and was thrown through the windshield in service. He reported that his primary difficulty as a result of his head injury was periodic headaches, and noise sensitivity during headaches. The Veteran served in the United States Army from January 2000 to January 2005. A December 2003 VA treatment records reflects that the Veteran reported that he was having a headache, vomiting, and photosensitivity. The treatment provider noted that the precipitating factor was smoking. A few weeks later, the Veteran was diagnosed with a headache. The treatment provider noted that the headache resolved after fluids. November 2004 service treatment records reflect that the Veteran was involved in a motor vehicle accident as a passenger, and that his face went through the windshield. The treatment provider noted that the Veteran had no complaints, but had facial lacerations. The Veterans wounds were cleaned and sutured. The treatment provider noted that the Veteran arrived in his own personal vehicle; the treatment provider obtained the history of what occurred from the Veteran; and the Veteran was released home. The Veteran was afforded a VA examination in April 2013, which did not reflect a diagnosis of TBI. The Veteran reported that he was in a motor vehicle accident in November 2004, and went through the windshield, sustaining multiple facial lacerations. The Veteran did not report loss of consciousness. The Veteran’s lacerations were sutured and a facial CT scan was negative. The Veteran reported headaches and a mild decrease in memory since then. The examiner noted that the Veteran complained of mild memory loss, and impairment of attention, concentration, and executive functions. The examiner noted, however, there was not objective evidence on testing of impairment of memory, attention, concentration or executive functions. The examiner further noted that the Veteran’s judgment was normal, his social interaction was routinely appropriate, he was always oriented to person, time, place, and situation, his motor activity was normal, and his visual spatial orientation was normal. Based on the evidence as outlined above, the Board finds that the criteria for service connection for a TBI have not been met. Although November 2004 service treatment records reflect that the Veteran was involved in a motor vehicle accident, which caused facial lacerations. The Veteran had no signs and symptoms at the time of the accident or thereafter of a TBI. Notably, service treatment records reflect that following the accident, the Veteran was able to drive himself to the hospital for treatment, and was able to describe the incident to the treatment provider. Further, the Board notes that the Veteran sought treatments for headaches in December 2003, prior to his motor vehicle accident, and there are no service treatment records which reflect that the Veteran sought treatment or complained of headaches after the motor vehicle accident. Post-service treatment records do not reflect that the Veteran sought treatment or complained of symptoms or residuals of a TBI after service. The Board acknowledges that the Veteran has reported symptoms of headaches, mild memory loss, impairment of attention, concentration and executive functions. He is competent to report the symptoms he has experienced. See Jandreau v. Nicholson, supra. However, the record does not reflect that the Veteran has been diagnosed with TBI. The April 2013 VA examination did not reveal a diagnosis of TBI. Although, the Veteran reported headaches, mild memory loss, impairment of attention, concentration, and executive functions, there was no objective evidence of the Veteran’s reported impairments. Thus, the Board finds that the evidence of record does not demonstrate a current diagnosis of TBI. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In this case, there is no current diagnosis of TBI. Therefore, service connection for TBI with headaches is not warranted. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for TBI with headaches on any basis. Thus, the claim for service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression secondary to facial scarring The Veteran seeks service connection for anxiety and depression due to facial scarring, which he asserts is related to service or to service-connected facial scars. In May 2012, the Veteran stated that he suffered from anxiety and occasional bouts of depression as a result of the facial scarring sustained from a motor vehicle accident where he was the passenger, and was thrown through the windshield in service. As noted, November 2004 service treatment records reflect that the Veteran was involved in a motor vehicle accident as a passenger, and that his face went through a windshield. The treatment provider noted that the Veteran had no complaints, but had facial lacerations. The Veterans wounds were cleaned and sutured. The Veteran was afforded an VA examination in March 2013, which did not reflect a diagnosis of a mental disorder. The Veteran reported that he was currently married since 2007, with three biological children (ages 7 months, 5 years, and 7 years), and four step children (ages 12, 14, 16, and 20 years). The 20-year-old lived independently, but the other six children lived at home with him and his spouse. With regards to his relationship with his spouse, he reported that they had verbal arguments, and that he was easily aggravated and frustrated, in general, and that there was always something going on in his life. He reported that he got along well with all of his children. The Veteran reported that he was in the military police, and stated that it wasn’t bad, but he was tired of someone else being in control of his life. The Veteran did not discuss his facial scars. The Veteran denied having any type of mental health counseling. The Veteran reported that he had been prescribed Wellbutrin in approximately in 2002 to help him quit smoking, and not for depression or anxiety. The examiner noted that the Veteran seemed a bit overwhelmed with some of his current circumstances, but there was not enough evidence to warrant consideration of a diagnosis, including adjustment disorder. The examiner opined that the Veteran’s problems seemed to be typical reactions to stressors in his life rather than him having any type of mental health diagnosis per se. Based on the evidence as outlined above, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include anxiety and depression have not been met. Although November 2004 service treatment records reflect that the Veteran was involved in a motor vehicle accident, which caused facial lacerations. There are no service treatment records which reflect that the Veteran sought treatment or complained of anxiety or depression after the motor vehicle accident. Post-service treatment records also do not reflect that the Veteran sought treatment or complained of anxiety or depression after service. The Board acknowledges that the Veteran has reported symptoms of anxiety and depression. He is competent to report the symptoms he has experienced. See Jandreau, supra. However, the record does not reflect that the Veteran has been diagnosed with a psychiatric disorder. Thus, the Board finds that the evidence of record does not demonstrate a current diagnosis of a psychiatric disorder. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In this case, there is no current diagnosis of a psychiatric disorder, including anxiety or depression. Therefore, service connection for an acquired psychiatric disorder on either a direct or secondary basis is not warranted. See also, 38 C.F.R. § 3.310. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for an acquired psychiatric disorder, to include depression and anxiety on any basis. Thus, the claim for service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel