Citation Nr: 20007131 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-26 266 DATE: January 28, 2020 ORDER New and material evidence having been received, the claim of service connection for a left knee condition is reopened. Entitlement to service connection for a left knee condition is granted. FINDINGS OF FACT 1. Prior to the present appeal, the service connection claim for a left knee condition was last finally denied in an April 2007 rating decision. 2. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period and the April 2007 decision became final. 3. Evidence submitted since the April 2007 denial is new, and when credibility is presumed solely to reopen the claims, raises a reasonable possibility of substantiating the claim of service connection for a left knee condition. 4. The preponderance of the evidence supports a finding that the Veteran’s left knee condition to include synovitis and osteoarthritis was incurred in or is otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for new and material evidence having been received, the petition to reopen have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1990 to December 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2019, the Veteran testified at a video conference hearing in the Portland RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. New and material evidence having been received, the petition to reopen The Veteran claims entitlement to service connection for synovitis and early osteoarthritis in his left knee. The Board is required to address petitions to reopen previously denied claims on the basis of new and material evidence in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the Agency of Original Jurisdiction (AOJ) may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed in the following decision to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA. Material evidence is defined as 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). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Shade, 24 Vet. App. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 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, 284 (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). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s claim for service connection was most recently finally denied in an April 2007 rating decision. The Veteran did not submit new evidence, nor appeal the rating decision in the following one-year period, and as a result, the decision became final. The Veteran filed a new claim in October 2014. New evidence submitted includes the Veteran’s lay statements including testimony at his hearing in September 2019, a lay statement from the Veteran’s wife, and updated medical records. The evidence is material in that it more fully explains the history and effects of the Veteran’s left knee condition. As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the claim for service connection for a left knee condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Entitlement to service connection for a left knee condition is granted. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has claimed entitlement in this case based on a secondary theory of service connection, arguing that his left knee synovitis and osteoarthritis developed as a result of an impaired gait from his service-connected right knee condition. As the Board is granting the claim on a direct service connection basis, further discussion of the secondary theory of service connection is unnecessary. The first Hickson element requires a present disability. The Veteran was diagnosed with synovitis and early degenerative osteoarthritis in his left knee in January 1994. At that time, the medical examiner noted that the Veteran was fully able to work, and his leg range of motion and strength were normal. However, the examiner also acknowledged the Veteran experienced pain, and had to be careful with certain activities. The examiner noted the Veteran’s statements that he was comfortable operating a car for two hours, or walking at least two miles, and that he could stand for a full eight-hour work day. See January 1994 VA Examination. The United States Court of Appeals for the Federal Circuit has held that pain alone can establish a disability, if the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). At the time the Veteran was diagnosed with synovitis in January 1994, his synovitis did not reach such a level. However, the Veteran has testified that in the subsequent years, he has had to change jobs on multiple occasions because he was unable to perform the work required. Specifically, the Veteran could not get on his hands and knees to scrub floors as part of a housekeeping job, and though he could move lightweight furniture and hang pictures, he could not perform heavier lifting required as part of a material handler job. See September 2019 Hearing Transcript. The Board finds that because the Veteran has been unable to perform his job and had to request a transfer, his condition developed to the point that he experienced a functional impairment of earning capacity. As a result, the first Hickson prong is satisfied. The second Hickson element requires an in-service injury or incurrence. The Veteran’s service medical treatment records show that he was treated for bilateral knee pain in August 1990, and was given light duty. In June 1992, the Veteran’s record notes knee injuries, but does not specify an event or injury with any detail. The Veteran clarified in his January 1994 VA examination that he had experienced generally constant pain in both his knees throughout service, and frequently sought treatment from corpsmen during service, who provided him with ibuprofen but did not otherwise treat or document his knee pain. The Veteran again confirmed this assertion during his testimony before the Board in September 2019. The Veteran’s service treatment records generally corroborate his accounts. As a result, the Board finds the Veteran experienced an incurrence of pain in his left knee during military service, and thus the second Hickson element has been satisfied. The third Hickson element requires a nexus between the present disability and the in-service incurrence. To this point, the January 1994 VA examination is highly probative. The examiner noted that both the Veteran’s knees had a history of during his military service, and since then. The opinion continued, diagnosing that the chronic bilateral knee pain was synovitis plus very early degenerative arthritis. The examiner’s plain language indicates that the Veteran’s condition was the same condition he had experienced a little over a year previously, while he was still in service. See January 1994 VA Examination. The Board finds this examination and analysis highly probative as the examination was thorough, included imagery of the Veteran’s knee, and was based on sound medical principles. Moreover, the examination took place soon after the Veteran was discharged from active duty. The Board has considered the July 2016 VA medical examination that resulted in a negative etiological opinion. That examiner found that the Veteran’s diagnoses of osteoarthritis and synovitis were still applicable. However, the examiner indicated there was no functional loss or impairment, and the Veteran had full range of motion, strength, and the ability to perform multiple repetitions of movement without functional loss. The examiner opined that the Veteran’s present left knee condition was less likely than not secondarily related to his right knee condition. He also opined that the Veteran’s condition was not directly related to his left knee complaints during service. The examiner addressed the January 1994 examination directly, noting that osteoarthritis for a 21-year old without an overt injury would be a rare finding. Though medical records showed x-ray imagery had been taken at that time, the July 2016 examiner opined that the findings were not elevated in the description sufficiently to diagnose osteoarthritis, and thus disagreed with a diagnosis at that time. The examiner further explained that the Veteran’s other symptoms including crepitus would not be unexpected because the Veteran was an active runner. The examiner did not address the etiology of the Veteran’s synovitis. See July 2016 C&P Exam (two documents with the same title). The Board affords this etiological opinion low probative weight. The opinion directly addresses the January 1994 examination and opinion, and the examiner personally evaluated the Veteran’s condition. However, the examiner did not address why he adopted some of the previous examiner’s conclusions (i.e. diagnoses) but did not adopt other conclusions (i.e. that the conditions had continued since service). Moreover, without explanation, the July 2016 examiner disregarded the Veteran’s lay statements of continued pain in his knees since his first diagnosis and since service. Weighing the evidence, the Board finds the preponderance of the evidence supports a conclusion that the Veteran’s synovitis and early degenerative arthritis condition was incurred during military service. Although the condition has continued and worsened, the Veteran’s present condition is the same as what was diagnosed a little over a year after his discharge. Though the condition did not initially result in functional impairment of earning capacity, it has worsened over time to reach the legal threshold of being a disability, as defined by Saunders. Thus, the Veteran’s left knee condition now constitutes a disability, and is directly related to the Veteran’s active service. Each of the Hickson elements has been met. The claim for service connection is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.