Citation Nr: 19184635 Decision Date: 11/07/19 Archive Date: 11/07/19 DOCKET NO. 15-44 667 DATE: November 7, 2019 ORDER The petition to reopen the claim of entitlement to service connection for a right knee disorder is allowed. The appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for a left knee disorder is allowed. The appeal is granted to that extent only. Entitlement to service connection for a right knee disorder, to include as due to service-connected disabilities, is granted. Entitlement to service connection for a left knee disorder, to include as due to service-connected disabilities, is granted. FINDINGS OF FACT 1. In a January 2003 rating decision, the Veteran’s claims of entitlement to service connection for bilateral knee disorders were denied. 2. Additional evidence has been received, which is not cumulative or redundant of the evidence of record at the time of the January 2003 rating decision and relate to unestablished facts necessary to substantiate the claims for service connection for bilateral knee disorders. 3. The Veteran’s right knee disorder is attributable to his military service. 4. The Veteran’s left knee disorder is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The January 2003 rating decision denying service connection for bilateral knee disorders is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral knee disorders and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right knee disorder, to include as due to service-connected disabilities, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a left knee disorder, to include as due to service-connected disabilities, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1990 to August 1992. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that VA treatment records have been associated with the Veteran’s claims folder following the issuance of the most recent adjudication of the Veteran’s claims (an October 2015 statement of the case (SOC)). However, these records are essentially duplicative of medical evidence dated prior to the October 2015 SOC. As such, the Board finds that remand for a waiver of this evidence is not necessary. 38 C.F.R. §§ 19.9, 20.1304 (c). I. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination to reopen a claim based on new and material evidence that is independent of the RO’s decision to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. By way of history, the Veteran’s bilateral knee claims were received by VA in August 2002. In a January 2003 rating decision, the claims were denied. The RO found that although the Veteran related his bilateral knee disorders as being caused by a change in weight to compensate for a low back condition, service connection could not be established on a secondary basis since the Veteran’s low back condition was not service connected at that time. The evidence of record at the time of this decision included the Veteran’s service treatment records (STRs) and his post service VA and private treatment records. The Veteran’s STRs noted a left knee injury in June 1992; however, there were no complaints or treatment for a right knee injury. In addition, there were no subsequent complaints or treatment for any other knee issues. The Veteran elected not to undergo a separation examination. His post-service VA and private treatment records noted complaints and treatment for bilateral knee pain, but none of his treating physicians gave a positive opinion that the Veteran’s bilateral knee disorders were the result of his military service. The Veteran timed filed a Notice of Disagreement (NOD) with this rating decision, which was confirmed by the RO in an August 2003 SOC. The Veteran did not appeal these issues to the Board; therefore, the January 2003 rating decision became final in January 2004, one year after notice of the rating decision was mailed to the Veteran. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. In February 2013, the Veteran’s claims of entitlement to service connection for bilateral knee disorders were received by VA. The evidence received since the time of the January 2003 rating decision includes additional post-service VA treatment records, a March 2013 VA examination report, a January 2014 addendum VA opinion, and the Veteran’s August 2019 Board hearing transcript. A review of the additional post-service VA treatment records note complaints and treatment for bilateral knee pain. The March 2013 VA examination report noted diagnoses of right knee degenerative joint disease and left knee chondromalacia. In addition, the VA examiner gave positive opinions that the right knee disorder was related to military service, and the left knee disorder was secondary service-connected related to his abnormal gait that resulted of the Veteran’s right knee disorder. The January 2014 addendum VA opinion noted that the Veteran’s right knee is service connected and related to his in-service knee injury, and his service connected low back disability and compensatory gait contributed to his right knee disorder. Regarding the left knee disorder, the VA examiner found that the left knee disorder resulted from the compensatory gait due to his right knee disorder and abnormal gait due to his service-connected low back disability. The Veteran testified at his August 2019 Board hearing that he had no knee issues prior to entering service, that he undertook many road marches and heavy runs which caused his knees to swell, that he was encouraged to self-mediate and not report to sick call for his knee problems, that he sought knee treatment less than a year after discharge, and has had constant bilateral knee pain from service to the present. This evidence is presumed credible for purposes of reopening a claim based on new and material evidence. This evidence is new and material as it pertains to (1) whether the Veteran has current bilateral knee disorders, (2) whether the Veteran experienced an in-service injury, disease, or event, and (3) whether there is a potential medical nexus between the Veteran’s bilateral knee conditions and his active duty service. These are previously unsubstantiated facts that are necessary to substantiate the claims of service connection. Therefore, the claims are reopened. II. Service Connection Law and Regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the Veteran’s right knee degenerative joint disease qualifies as a “chronic condition” under 38 C.F.R. §§ 3.307 and 3.309. As such, an alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 3. Entitlement to service connection for a right knee disorder. The Veteran contends that his right knee disorder is the result of an in-service injury. In addition, the Veteran contends that his right knee disorder was caused or aggravated by his service-connected low back disability. A September 2012 rating decision granted service connection for failed back surgery syndrome. The Board finds that the Veteran has a current right knee disorder. The March 2013 VA examination report noted a diagnosis of right knee degenerative joint disease. In addition, the Board finds evidence of an in-service injury or event. The Veteran credibly testified that he injured his right knee during his in-service physical training (PT) run. As such, the two Shedden criteria are met and are not in dispute. The remaining issues, therefore, are (1) whether there is a medical nexus between the right knee disorder and his military service; or (2) whether the right knee disorder was caused or aggravated by the service-connected low back disability. The Board finds a preponderance of the evidence to be in favor of the Veteran. Therefore, the claim of entitlement to service connection is granted. The Veteran’s service treatment records (STRs) document complaints and treatment for a left knee issue in June 1992. No subsequent complaints or treatment for any other knee issues were found. The Veteran elected not to undergo a separation examination. However, the Veteran testified that he sustained a right knee injury in June 1992, that the individual who treated him did not write anything down during his treatment, and that his STRs indicated the wrong knee was treated after reviewing his records once he left service. In addition, he testified that road marches and heavy runs caused his knees to swell, but he was encouraged to self-treat his knees by icing them down and self-medicate with medication dispensed from medics. He also testified that everyone avoided reporting to sick call for fear of being deemed non-deployable. Furthermore, he testified that he wanted to get out the service and was afraid that they would keep him in if he reported to sick call. The Board finds the Veteran’s testimony to be truthful and credible and is given probative value. A review of the Veteran’s post-service VA and private treatment records note complaints and treatment for bilateral knee pain. Of note, the Veteran testified that he sought private treatment for his knees less than one year after being discharged. The Veteran also submitted a July 2014 affidavit from his sister, stating that she took the Veteran for private treatment with Dr. A. for his knees shortly after being discharged, but that these treatment records were gone. A June 2014 letter from Dr A. corroborates this affidavit, stating that the Veteran was seen “years ago” but his treatment records were either destroyed in an office fire or shredded after five to ten years as a non-returning patient. The Veteran underwent a VA examination in March 2013. The examiner noted that the claims file had been reviewed. In addition, the examiner noted the Veteran’s history and treatment of his right knee in-service injury. The examiner gave a positive opinion that the Veteran’s right knee disorder was due to his military service. The examiner noted that while the right knee disorder was less likely due to his service-connected low back disability, a review of the Veteran’s claims file indicated that he actually injured his right knee while on active duty. No other rationale was provided. An addendum VA opinion was issued in January 2014. The VA examiner gave a positive opinion that the Veteran’s right knee disorder were due to his military service. The examiner found that the right knee disorder was related to the Veteran’s prior in-service injury which occurred during the completion of his required physical fitness test in 1992. In addition, the examiner opined that that the Veteran’s service-connected low back disability and compensatory gait also contributed to the Veteran’s right knee disorder. The Board finds that these VA opinions are adequate, as they was based upon a complete review of the evidence of record, consideration of the Veteran’s lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence demonstrates that the Veteran’s current right knee disorder is the result of his in-service right knee injury. Accordingly, service connection on a direct basis is warranted. Since the Veteran has been found to be service connected on a direct basis, an analysis of his right knee claim for secondary service connection or presumptive service connection is unnecessary. When taken together, a preponderance of the evidence is in favor of the Veteran. Therefore, his claims of entitlement to service connection for his right knee disorder is granted. 4. Entitlement to service connection for a left knee disorder. The Veteran contends that his left knee disorder was caused or aggravated by his service-connected disabilities, including his now service-connected right knee disorder. The Board finds that the Veteran has a current left knee disorder. The March 2013 VA examination report included a diagnosis of left knee chondromalacia. In addition, the Board notes the Veteran’s aforementioned in-service knee injury. As such, the two Shedden criteria are met and are not in dispute. The remaining issues, therefore, are (1) whether there is a medical nexus between the left knee disorder and his military service; or (2) whether the left knee disorder was caused or aggravated by the Veteran’s service-connected disabilities. The Board finds a preponderance of the evidence to be in favor of the Veteran. Therefore, the claim of entitlement to service connection is granted. As stated above, the Veteran’s STRs report complaints and treatment for a left knee issue in June 1992. However, the Veteran testified that he sustained a right knee injury, not a left knee injury in June 1992. In addition, he testified that road marches and heavy runs caused his knees to swell, but he was encouraged to self-treat his knees by icing them down and self-medicate with medication dispensed from medics. He also testified that everyone avoided reporting to sick call for fear of being deemed non-deployable. The Board finds the Veteran’s testimony to be truthful and credible and is given probative value. A review of the Veteran’s post-service VA and private treatment records note complaints and treatment for bilateral knee pain. The Board notes that the Veteran testified that he sought private treatment for his knees less than one year after being discharged. The Veteran also submitted a July 2014 affidavit from his sister, stating that she took the Veteran for private treatment with Dr. A. for his knees shortly after being discharged, but that these treatment records were gone. A June 2014 letter from Dr A. corroborates this affidavit, stating that the Veteran was seen “years ago” but his treatment records were either destroyed in an office fire or shredded after five to ten years as a non-returning patient. The Veteran underwent a VA examination in March 2013. The examiner noted that the claims file had been reviewed. In addition, the examiner noted the Veteran’s claim that his left knee disorder was related to his abnormal compensatory gait resulting from his right knee disorder. The examiner gave a positive opinion that the Veteran’s left knee disorder was more likely a secondary related to his compensating gait resulting from his right knee disorder. An addendum VA opinion was issued in January 2014. The VA examiner gave a positive opinion that the Veteran’s left knee disorder most likely represented a secondary condition that resulted from a compensatory gait related to his right knee disorder as well as his abnormal gait related to his service-connected low back disability. The Board finds that these VA opinions are adequate, as they was based upon a complete review of the evidence of record, consideration of the Veteran’s lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence demonstrates that the Veteran’s left knee disorder is secondary to the Veteran’s right knee disorder and low back disability. Accordingly, service connection on a secondary basis is warranted. Since the Veteran has been found to be service connected on a secondary basis, an analysis of his right knee claim for direct service connection is unnecessary. (Continued on the next page)   When taken together, a preponderance of the evidence is in favor of the Veteran. Therefore, his claims of entitlement to service connection for his left knee disorder is granted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.