Citation Nr: 20005237 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-02 004 DATE: January 22, 2020 ORDER As new and material evidence has been received, the claim for service connection for left knee disorder is reopened. Entitlement to service connection for left knee disorder is granted. FINDINGS OF FACT 1. In October 1979, the RO denied service connection for left knee disorder; the Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. Evidence received since October 1979 is new and material, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for left knee disorder, and raises a reasonable possibility of substantiating the claim. 3. There is at least a relative equal balance of competent, credible and probative lay and medical evidence to support that left knee disorder was caused by, aggravated by, or otherwise attributable to active duty service. CONCLUSIONS OF LAW 1. The October 1979 rating decision that denied service connection for left knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. Resolving reasonable doubt in the Veteran’s favor, acquired psychiatric disorder, to include depression, was incurred in, or aggravated by, service. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from August 1974 to August 1978; from March 1980 to August 1990; from January 1994 to September 1994; from July 2003 to March 2004; from June 2004 to October 2004; from January 2005 to May 2005; from December 2007 to February 2008; and from May 2012 to June 2012. The Veteran performed Reserve service in the intervening periods and retired from Reserve service in 2015. This case comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the Veteran’s claims file is currently at the RO in Oakland California. The RO adjudicated the Veteran’s claim for service connection for bilateral knee condition in its October 2015 rating decision. In a subsequent rating decision of November 2017, the RO granted service connection for residuals of right total knee replacement. Hence, the remaining issue on appeal is service connection for a left knee disorder. New and Material Evidence 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. § 7104(b). 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. In the rating decision of October 1979, the RO considered evidence consisting of the Veteran’s service medical records (from his first period of active duty service as reflected above) and the Veteran’s lay representations. First (noting that the Veteran failed to appear for a VA examination in October 1979), the RO opined that the Veteran received a diagnosis of left knee chondromalacia. However, x-ray imaging showed no left knee abnormalities. Upon separation examination in June 1978, the Veteran indicated that he had a history of occasional right knee pain since 1976 for which the Veteran did not seek medical care. As the separation examination failed to disclose either left knee disorder chronicity or any residuals of the noted chondromalacia, there was no in-service predicate upon which service connection for left knee disorder could be established. Since October 1979, VA received applicable new evidence consisting of the Veteran’s service treatment records (STRs) from his subsequent periods of active duty service (that did not exist at the time of the original denial); private medical records; lay statements; private medical records, and a VA knee and lower leg conditions examination report. When considering the minimal evidentiary threshold standards (under Shade), this competent medical and lay evidence is material to previously unestablished facts—possible in-service incurrences and current disability (left knee disorder; residuals of left knee replacement). Hence, this body of evidence raises a reasonable possibility of substantiating the left knee disorder claim. See 38 C.F.R. § 3.156(a). Therefore, the evidence is new and material and the Veteran’s service connection claim for left knee disorder is reopened. Service Connection The Veteran contends that his left knee disorder, which ultimately led to a total left knee replacement, was incurred in, or aggravated by, active duty service. See January 9, 2019, Form 9. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. 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). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Analysis The Veteran’s STRs provide guidance as to the Veteran’s left knee disorder. In June 1978, the Veteran was treated for bilateral knee pain. A clinician noted no specific deficits, diagnosed left knee chondromalacia, and prescribed heat application and physical therapy. There was no follow-up. On post-deployment questionnaires in August 2004 and April 2005, the Veteran denied any swollen, stiff or painful joints. In a February 2008 medical assessment, the Veteran report having “tweaked” his left knee on ice, and a clinician noted that this injury occurred in January 2008 in Afghanistan. Following an examination, the clinician diagnosed left knee sprain and recommended physical therapy. In an August 2008 questionnaire, the Veteran again denied any swollen, stiff or painful joints. Between periods of active duty but while in the Reserve, in an October 2009 questionnaire, the Veteran reported that his left knee “gives out.” In December 2010, the Veteran was restricted in duty and found to be non-deployable for an unspecified time for “derangement of the left knee.” In a narrative history summary dated in August 2011, a clinician noted the Veteran’s report of surgery for a torn left knee meniscus on January 7, 2011. In an October 2011 letter, a private physician noted that he had been treating the Veteran for left knee pain, and in November 2010, an imaging study showed a torn meniscus. The Veteran underwent surgery in January 2011. In early 2012, the Veteran was restricted from performing runs for physical fitness testing. In an April 2012 note, a private physician noted that the Veteran had osteoarthritis in both knees and advised his unit that he should be restricted from the physical fitness testing. The Veteran performed additional active duty from May to June 2012 but there are no further records of care or examination on active duty. In 2014, the Veteran underwent a total left knee arthroplasty. In a statement posted in February 2016, the Veteran reported that his job during is entire period of service required kneeling, crawling, squatting, scaling ladders and other activities that caused his knee replacements. The Board has considered the Veterans multiple lay accounts about the continuity of his discernable left knee pain. There is very little in the STRs to support the development of a chronic knee disability after the 1978 treatment for chondromalacia or after the 2008 injury on ice in Afghanistan. There was no follow-up after each episode and the Veteran remained in the Reserve. The Veteran denied knee problems on several history questionnaires prior to the development of torn cartilage in 2009 after active duty. On the other hand, the Veteran’s report of duties involving repeated kneeling, squatting, and ladder climbing over an extended career as an aircraft mechanic is competent and credible as it is consistent with the nature and circumstances of his duties. The Veteran has reported that during his 39 years of (intermittent) active service, his military occupational specialty (MOS) in aircraft maintenance—including integrated avionic system craftsman and specialist—required kneeling, crawling squatting, and scaling ladder. These tasks which involved working in running aircraft engines and aerospace ground equipment, according to the Veteran, wore on his left knee, to the extent that he required physical therapy, multiple forms of clinical intervention, and finally a complete left knee replacement. See February 8, 2016 Correspondence. Although not on active duty 2008 to 2012, the Veteran did continue his Reserve occupation as an aircraft mechanic. There is no evidence to show a traumatic event occurred on or off Reserve duty. The Board observes that private orthopedic surgery treatment records corroborate the Veteran’s lay contentions. See, e.g., September 27, 2017 Medical Treatment Record—Non-Government Facility, 6 separate documents. The Veteran was afforded a VA knee and lower leg conditions examination in July 2017. The examiner reviewed the claims file; considered the Veteran’s subjective accounts; and conducted a clinical evaluation. This examiner noted that the record shows that the Veteran’s active service showed knee injuries and complaints. Upon consideration of the evidence, this examiner provided a negative nexus opinion. The Board acknowledges this examiner’s opinion; however, the Board finds the examiner’s rationale to contain shortcomings. Even though a military clinician provided a diagnosis of left knee chondromalacia in 1978, this examiner opined that this diagnosis was merely “an incidental (sic) finding [for] the right knee.” The Board presumes that this examiner meant coincidental. Nevertheless, be it “incidental” or coincidental, the diagnosis is clear, and the Veteran did have an episode of bilateral knee strain. However, on a number of occasions later in service including after the 2008 injury, the Veteran denied any continuing symptoms. The examiner did note in the rationale: [The Veteran] did sustain an apparent self-limited injury in 2008 however [the Veteran] had a previous history of left knee trouble. [Therefore] […] it is difficult to say without a certain degree of medical certainty that the acute left knee strain in 2008 contributed to the severity of pathology which [the Veteran] presented in 2010 to [his private orthopedist]. See July 26, 2017 C&P Exam, p. 5, last in list, emphasis added. The opinion is somewhat equivocal in that the evidence for causation by the two treatment events in service did not provide sufficient degree of medical certainty. The examiner articulates a degree of uncertainty or doubt. The Board recognizes that there are gaps in the evidence of record as to the on-going nature of the Veteran’s left knee disorder. Nevertheless, the Board also assigns probative weight to the Veteran’ report of rigorous physical duties, which the examiner did not address. Here, the Board notes that the Veteran is competent to report discernable left knee pain and the Board finds these accounts to be credible. See Jandreau, Caluza, both supra. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s left knee disorder was incurred in, or aggravated by, service. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.