Citation Nr: 20007865 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-05 753 DATE: January 30, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. Entitlement to service connection for right knee arthritis is granted. FINDINGS OF FACT 1. Service connection for a right knee disability was denied in an unappealed December 2011 rating decision. 2. Evidence received since the December 2011 rating decision is new and material. 3. Resolving reasonable doubt in the Veteran’s favor, his right knee arthritis is related to service. CONCLUSIONS OF LAW 1. The December 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the December 2011 rating decision is new and material, and the claim of entitlement to service connection for a right knee disability is reopened. 38 U.S.C. § § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for right knee arthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.6, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army Reserves on active duty for training (ACTDUTRA) from October 1989 until April 1990 and various dates of inactive duty for training (INACTDUTRA) thereafter until August 1994. In December 2011, a Department of Veterans Affairs (VA) regional office (RO) denied the Veteran’s claim for entitlement to service connection for a right knee disability. This claim went unappealed and became final. In February 2016, the RO again denied the Veteran’s claim for entitlement to service connection for a right knee disability. The Veteran timely appealed and the matter is now before the Board of Veterans’ Appeals (Board) for adjudication. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. The Board finds that new and material evidence regarding the Veteran’s claim for entitlement to service connection for a right knee disability has been received since the December 2011 rating decision, to include numerous lay statements, military personnel records, service treatment records, a February 2016 VA examination, and a January 2018 VA addendum opinion. This new evidence relates to an unestablished fact—namely, a nexus between the Veteran’s right knee disability and his military service—necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for a right knee disability is reopened. 2. Entitlement to service connection for right knee arthritis is granted. The Veteran contends that he has a right knee disability related to his period of INADCUTRA. He asserts that he injured his right knee in August 1993 after slipping and falling on concrete steps. Under 38 U.S.C. § 101(24), active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the reserve components. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the reserve components. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, by active service, and from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C. §§ 101(24), 106, 1110 (2012). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). A February 2016 VA examination diagnoses the Veteran with right knee arthritis. Accordingly, the first Shedden element has been met. The Veteran’s service treatment records from August 1993, September 1993, October 1993, February 1994, April 1994, and May 1994 all show continuous complaints for right knee pain while in service. Importantly, the Veteran was seen while on INACDUTRA in August 1993 for complaints of pain in his right knee following a fall. A contemporaneous line of duty determination confirms injury to the right knee while on inactive duty training. Additional August 1993 service treatment record notes document “observable edema, inflammation, heat at site of injury accompanied by tenderness and decreased ROM in extension, flexion, lateral flexion.” October 1993 service treatment notes document continuing pain while “standing + getting up + down”; although a full range of motion was noted, the treatment provider marked pain on weight-bearing. A routine February 1994 examination documented “occasional pain” and “swollen or painful joints” in his right knee. April 1994 service treatment notes report occasional swelling after overuse of the right knee. The Board thus finds that the second Shedden element, that of an in-service event, is satisfied. The remaining determination, therefore, is whether there is a nexus between his right knee arthritis and the in-service fall. In a September 2015 lay statement, the Veteran noted that he injured his right knee in service but that since he did not have health insurance, he was unable to seek treatment. The Veteran explained that he has “continued to suffer with the disability since leaving the service.” The Veteran further detailed that he has been self-medicating with over the counter products since his separation from service. The Veteran further supplied a July 2016 lay statement which detailed the same. The Veteran participated in a February 2016 VA examination. At that time, he reported that his right knee pain began in August 1993 after his fall in service and that it “lasted for a while” with occasional episodes of pain while running and with prolonged standing or walking. The Veteran additionally reported that “over the years the knee pain gradually worsened.” The examiner noted that the Veteran reported knee pain in August 1993 with findings of a soft tissue contusion. The examiner further discussed that a February 1994 service treatment record marked the right knee as normal. The examiner ultimately opined that the Veteran’s right knee arthritis was more consistent with aging. In January 2018, a VA addendum opinion was sought. When reviewing the medical evidence, the examiner referenced a January 3, 2012 x-ray report that revealed that the Veteran’s right knee was normal. This January 2012 x-ray is not a part of the claims file. The examiner opined that the Veteran’s right knee disability was less likely due to service and more likely due to the aging process. The examiner explained that the Veteran experienced “minor self-limiting conditions which resolved,” and that “it was many years after the events in the military service” before the Veteran reported this injury in 2016. Due to this lengthy gap, the examiner reasoned that “this considerable period of time after the veteran left the military without a continuity of the same complaints would have severed any causal connection to the current issue.” The Veteran provided a lay statement in January 2018 which further details the continuity with which he has been experiencing pain in his right knee since service. Specifically, the Veteran explains that in the years since the injury, his knee “pops” out of place consistently. Based on the above, the Board finds that service connection for a right knee disability is warranted. The Board highlights that the Veteran’s service treatment records document persistent and continued right knee pain from August 1993 until May 1994. Indeed, an April 1994 note refers the Veteran to an orthopedist and directs him to use a knee sleeve for support. The Board is aware that there are two VA examinations weighing against the claim. However, the Board assigns less probative weight to this evidence. With regard to the February 2016 VA examination, the examiner stated that the Veteran’s February 1994 treatment record reported the right knee as normal. That is factually incorrect. The February 1994 service treatment record states exactly the contrary as it documents “occasional pain” in the right knee. Likewise, the January 2018 VA examiner stated in his reasoning that the lack of “continuity of the same complaints would have severed any causal connection to the current issue.” This is also factually incorrect. The Veteran submitted numerous credible lay statements, including in September 2015, July 2016, and January 2018, regarding his continuous right knee pain since separation from service. This demonstrates the opinion was predicated on inaccurate facts, making it inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, both VA examinations are inadequate as they do not contain an explanation as to why the Veteran’s statements regarding his onset and persistence of knee pain were being discounted. The Board acknowledges that the Veteran did not supply any post-service treatment records documenting continued treatment for his right knee disability. However, absence of this evidence is not dispositive as the Veteran credibly explained that he has suffered from right knee pain since service and that he was unable to afford healthcare treatment because he was not insured. As the VA examiners failed to provide adequate discussion of the Veteran’s credible contentions regarding the continuity of symptoms of his right knee problem, the Board finds that these examinations warrant little probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board assigns more weight to the Veteran’s lay statements that, ever since his in-service fall, his knee pain and “popping” has been continuous. The Board finds that the Veteran, as a lay person, is competent to testify to having been injured during service and experiencing persistent symptoms of right knee pain and popping. See Layno v. Brown, 6 Vet. App. at 470. Moreover, the Board notes that as the Veteran has been consistent in his testimony regarding the onset and continuity of symptomatology, there is no reason to doubt his credibility. These statements reflect a continuity of symptomatology of a right knee disability since service. The Board hereby assigns great probative weight to this evidence. Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current right knee arthritis and service, satisfying the third Shedden element of service connection. As all of the elements of service connection have been met, service connection for the Veteran’s right knee disability is warranted. The claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.