Citation Nr: 20007004 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-16 785 DATE: January 28, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for right knee condition. Entitlement to service connection for right knee condition is granted. Entitlement to service connection for left shoulder condition is dismissed. Entitlement to service connection for right shoulder condition is dismissed. FINDINGS OF FACT 1. In August 2009, the RO denied service connection for right knee condition and the Veteran did not perfect an appeal. 2. The evidence submitted since the RO’s August 2009 decision raises a reasonable possibility of substantiating the underlying claim for service connection for right knee condition. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s right knee condition is related to service. 4. In October 2019, the Veteran submitted testimony on the record at the Board hearing that he wanted to withdraw his appeal with respect to his service connection claims for left and right shoulder conditions. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final regarding the issue of service connection for right knee condition. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the RO’s August 2009 rating decision sufficient to reopen the Veteran’s claim of service connection for right knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for right knee condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issues of entitlement to service connection for left shoulder condition and right shoulder condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1958 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2019 Board videoconference hearing. A transcript of the hearing has been associated with the record. Initially, the Board notes that the Veteran has two other appeals pending under the Appeals Modernization Act (AMA) review system. Hearings for those issues were also held in October 2019 and will be addressed by the Board in a separate decision. The Board will continue with adjudication of these three issues pursuant to the legacy appeals process. Thus, this decision has been written consistent with the legacy, not AMA, framework. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee condition. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. 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 new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for right knee condition was previously denied in an August 2009 rating decision on the basis that the evidence did not show a chronic right knee condition during military service or that right knee degenerative joint disease was manifested to a compensable degree within one year of service. The Veteran did not file a notice of disagreement and, as a result, the August 2009 decision is final. Relevant evidence added to the claims file since the August 2009 rating decision includes the Veteran’s testimony at the October 2019 Board videoconference hearing as to continuity of right knee symptomatology following the in-service injury and a November 2019 private positive nexus opinion linking the Veteran’s current right knee disability to the in-service injury. This evidence, which is presumed credible for the purposes of determining whether new and material evidence has been submitted, is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim. Based on the foregoing, the Board finds that new and material evidence has been received to reopen the claim of service connection for right knee condition. Service Connection 2. Entitlement to service connection for right knee condition. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When chronicity or continuity of symptoms is shown, evidence of a medical nexus or causal link to service is not required to establish service connection. Walker, 708 F.3d at 1338-39; 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for certain diseases, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). In its determinations whether service connection is warranted for a disability, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection is warranted for a right knee condition stemming from an in-service injury. Service treatment records show that in February 1961, the Veteran reported that he fell while carrying ammunition and sustained a contusion to his right knee, which became swollen and tender. Though x-rays were negative for fracture, the Veteran was admitted to the hospital for treatment due to the severity of the contusion. Additional service records from the Veteran’s hospitalization note a laceration of the knee with “fluctuation and dancing patella.” Excessive fluid was then aspirated from the knee. At a June 2018 VA examination, the Veteran was diagnosed with knee joint osteoarthritis. He reported that his condition began with the in-service 1961 injury and has worsened over the years. The VA examiner opined that the diagnosed right knee condition was less likely than not related to the in-service right knee injury, noting that the Veteran was fully recovered from his injury at the time of his separation based on the lack of documented chronic knee pain following the in-service injury until 2008. The VA examiner noted that the most common cause of diagnosed osteoarthritis is age-related degeneration. At the October 2019 Board videoconference hearing, the Veteran testified that he got shots in his knee shortly after his separation from service due to extreme pain. He also testified that his knee gave him trouble at various jobs where he had to do a lot of physical labor and that he took over-the-counter medications for the swelling and pain. The Veteran’s wife testified that he had been having knee problems at least since their marriage in 1977. The Veteran submitted a November 2019 private examination and opinion from Dr. D.M., who opined that it is at least as likely as not that the Veteran’s right knee condition is the direct result of the injury he sustained on active duty. Dr. D.M. reasoned that, in-service, the Veteran sustained an injury to the joint surfaces of the patellofemoral joint, resulting in chondromalacia of the patella. He cited medical literature stating that patients with patellofemoral pathology typically experience pain with increased flexion of the knee joint, particularly between 20 and 80 degrees of flexion. Dr. D.M. noted that the Veteran reported severe pain upon sitting with his knee flexed, characteristic of patellofemoral problems. This pain was located in the front of his knee and in the sub-patellar area, which Dr. D.M. noted was the area injured on active duty. After review of the evidence, the Board finds that the evidence for and against the claim is at least in equipoise. The Board finds both the VA and private opinions adequate because both clinicians considered the relevant history of the Veteran’s claimed disability and provided analysis to support their opinions concerning the etiology of the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Thus, the competent evidence of record is in a state of relative equipoise regarding whether the Veteran’s current right knee condition is etiologically related to his period of active service. When the evidence for and against the claim is in relative equipoise, by law, the Board resolves all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for right knee condition is warranted. 3. Entitlement to service connection for left shoulder condition. 4. Entitlement to service connection for right shoulder condition. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Withdrawal of a claim must be “explicit, unambiguous, and done with a full understanding of the consequences of such action.” See generally Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In this case, the Veteran withdrew the issues of service connection for left shoulder condition and right shoulder condition at the October 2019 Board hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed without prejudice. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Thompson, 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.