Citation Nr: 20003786 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-52 569 DATE: January 16, 2020 ORDER New and material evidence having been received, the claims for service connection for a right knee condition and a left knee condition are reopened. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. In a final rating decision issued in August 2015, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee condition and a left knee condition. 2. Evidence added to the record since the final August 2015 denial is not cumulative and redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee condition and a left knee condition. 3. The Veteran’s right knee condition was not incurred in and due to his time in service. 4. The Veteran’s left knee disability was not incurred in and due to his time in service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for service connection for a right knee disorder and a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to May 1999. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110, 1131. Other specifically enumerated disorders, including arthritis, diabetes mellitus, hypertension, and other organic disease of the nervous system will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). New and material evidence having been received, the Veteran’s claims for service connection for a right knee condition and a left knee condition are reopened In an August 2015 rating decision, the RO denied the Veteran’s claims of entitlement to service connection for a left knee condition and a right knee condition. The Veteran did not appeal, and the decision became final. Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot be cumulative or 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.§ 38 C.F.R. § 3.156(a). 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). 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In September 2017, the Veteran sought to reopen both knee claims. Evidence submitted subsequent to the August 2015 rating decision consists of VA treatment records and private examiner opinions. The Board finds that newly submitted evidence is not cumulative and redundant of the evidence of record at the time of the August 2015 final rating decision and raises a reasonable probability of substantiating the Veteran’s claim of entitlement to service connection for a right knee disorder. Consequently, new and material evidence has been received and the Veteran’s claims of entitlement to service connection for a right knee condition and a left knee condition are reopened. Entitlement to service connection for a right knee disorder Entitlement to service connection for a left knee disorder The Veteran asserts that he suffers from a right knee disorder and a left knee disorder that are related to his active duty service. More specifically, the Veteran alleges that his knee disorders are a result of parachute jumps while on active duty. Initially, the Board notes that post-service treatment records show that the Veteran has been diagnosed with degenerative joint disease of his bilateral knees. See 2017 VAMC Records. The Veteran’s service treatment records show that the Veteran was deemed normal and no knee issues were reported on his September 1995 entrance examination. In-service treatment records show the Veteran sustained a left tibial stress fracture on May 2, 1996 following running, stretching and marching. The records describe left leg pain, but contain no reference to a knee disorder or knee pain. Subsequently, in June 1998 the Veteran complained of nontraumatic right knee pain which the Veteran reported as having begun the prior day while the Veteran was sitting. The Veteran was not in pain at the time of the examination and, importantly, did not report any trauma to the knee. The in-service provider noted that the knee exam was within normal limits and found the Veteran ready to return to duty. On his separation examination, the Veteran stated that his health was excellent and denied any history of broken bones, bone pain or a knee condition. The separation report of medical examination deemed his lower extremities to be normal. See March 1999 Report of Medical Examination. The Veteran underwent a VA examination of his knees in July 2015. The Veteran reported undertaking 21 airborne parachute jumps while in service and stated that his knees would lock on occasion. He denied getting any treatment while in service for his condition. The examiner also noted the Veteran’s reports that he was employed as a low voltage electrician after service, a position involving a lot of squatting and ladder climbing which the Veteran said made his knee pain worse. At the time of the examination, the Veteran reported working as a detailer at a car wash, which also involves significant squatting. Finally, the Veteran reported that he did not seek or receive care for this condition until approximately 2014 when he initiated treatment at the VA. As noted above, the Veteran served on active duty from January 1996 to May 1999, indicating about a 15 gap in treatment. The examiner diagnosed left knee osteoarthritis. While the examiner did not diagnose any condition for the Veteran’s right knee, subjective reports of right knee pain were noted. In an addendum opinion in August 2015, the examiner found that although in the realm of possibility because of the Veteran’s multiple in-service parachuting jumps, there is no objective evidence to support a chronic bilateral knee condition due to service or within a year of his separation from service. The examiner opined that it was as likely as not that the Veteran’s mild left knee ostearthritis and subjective right knee pain were the result of the Veteran’s post-discharge employment history. In a September 2017 VA treatment note, the Veteran’s primary care provider diagnosed the Veteran with bilateral degenerative joint disease that was “more likely than not related to military service in airborne infantry.” See September 2017 West-Haven VAMC treatment records. The Veteran underwent another VA knee examination in November 2017. The examiner only diagnosed the Veteran with left knee degenerative arthritis but noted his subjective claims of right knee pain. The examiner opined that it was less likely than not that the Veteran’s left knee condition was not related to an in-service injury, event, or illness. The examiner explained that the Veteran was only seen in service for a left tibia fracture and had one complaint of knee pain, both of which were treated conservatively, and reported no issues on his exit examination in 1999. Additionally, the examiner noted the approximately 15 years between the Veteran’s separation and his first reports of knee issues to the VA in 2014. Finally, the examiner also opined that the Veteran’s age and post-service occupation are likely contributing factors to his current bilateral knee condition. Treatment notes from the Veteran’s primary care provider in March 2018 show that after being presented with evidence of an in-service left tibia stress fracture and pain in his right knee, the primary care provider opined that the Veteran’s knee pain was more likely than not due to his service. See March 21, 2018 West-Haven VAMC treatment records. In light of the conflicting medical opinions, the VA sought another opinion from a different examiner. In July 2018, after reviewing the Veteran’s entire record, the examiner opined that it was less likely than not that the Veteran developed arthritis of the left knee due to the left tibial stress fracture he sustained in 1996 or that he sustained significant knee injuries while parachuting during service. The examiner explained that, despite the aforementioned sporadic treatment during service, the Veteran indicated that his health was excellent on separation, did not report any knee issues on separation and the separation exam deemed his lower extremities normal. The examiner further explained that the Veteran’s primary care provider did not appear to have access to the Veteran’s entire file, to include his military medical records. The Board observes that there are many conflicting medical opinions of record. The Court has found that the Board may consider a physician’s opinion to be of less weight and credibility when the basis of the opinion is shown to be less than complete or contradicted by other evidence. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Medical possibilities and unsupported medical opinions carry negligible probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Given the Veteran’s service, and what the Veteran did in service, the VA has undergone extensive efforts to determine if the Veteran’s knee problems were caused by his parachutes jumps, notwithstanding the fact that his service records do not indicate a problem. The Board finds the VA examiners’ opinions from July 2015, November 2017 and July 2018 probative and persuasive in determining whether there was a nexus between the Veteran’s problem and service, because the examiners provided a detailed rationale that encompassed the Veteran’s STRs, his private medical records, and lay statements. The VA opinions are supported by more compelling rationale, detailed clinical interviews, a thorough review of the Veteran’s record and relevant history and, most importantly, some of the Veteran’s own prior statements. The Board cannot ignore such extensive medical evidence against this claim. While the Veteran is competent to describe observable symptoms (e.g., knee pain, swelling), he is not competent to relate a medical diagnosis to his military service, as he is not shown to possess the requisite medical knowledge, training, or experience to do so. Moreover, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson, 230 F.3d at 1333. In fact, there is very limited evidence in this case that the Veteran even has a right knee problem. Therefore, the Board finds that entitlement to service connection for a left knee condition and a right knee condition is not warranted and the Veteran’s claims must be denied. See 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304, 3,310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this 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. See U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.