Citation Nr: 21002908 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-17 803 DATE: January 19, 2021 ORDER New and material evidence has been received, and a claim of service connection for a left knee disability is reopened. Service connection for a left knee disability as secondary to a right knee disability is granted. FINDINGS OF FACT 1. Evidence received since a July 2013 final rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a left knee disability. 2. The Veteran’s left knee arthritis was caused or aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. Evidence received since a final July 2013 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a left knee disability is therefore reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2019). 2. The criteria for service connection for a left knee disability as secondary to a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 2002. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In July 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. 1. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability The Veteran seeks to reopen his claim of service connection for a left knee disability. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran’s claim was originally denied in a July 2013 rating decision based on a finding that there was no in-service incident and his current left knee disability was unrelated to his right knee disability. This decision considered evidence including service treatment records, a series of lay statements by the Veteran, private treatment records, and a January 2013 VA examination with a June 2013 addendum opinion. In his lay statements, the Veteran claimed that his right knee arthritis forced him to carry more weight on his left leg, causing left knee arthritis. Private treatment records included orthopedic treatment from November 2011 to August 2012 which did not address left knee etiology beyond a suspicion of “possible old ACL tears bilaterally” noted in November 2011. The Veteran neither appealed the July 2013 rating decision nor submitted any evidence within the one-year appeal period, nor did he receive any treatment from a VA facility during that time. The July 2013 decision therefore became final. In a July 2020 brief, the Veteran’s representative argued that the July 2013 rating decision never became final. The only basis offered for this argument is the contention that the January 2013 VA examination was inadequate, and VA thus failed to fulfill its duty to assist. The representative misunderstands finality. A rating decision becomes final if a claimant does not appeal it or submit new and material evidence during the appeal period. After the appeal period has expired, a finding of an inadequate VA examination is insufficient to render a decision nonfinal. Indeed, the entire purpose of the concept of finality is that the decision can no longer be attacked with such arguments. A final rating decision may only be overturned based on a showing of clear and unmistakable error. Such a contention is beyond the Board’s jurisdiction in this appeal, and in any event failure to fulfill the duty to assist does not constitute clear and unmistakable error. See 38 C.F.R. §§ 3.105(a)(1)(vi); 20.1403(d)(2). For these reasons, the Board finds that the July 2013 rating decision is final. Private treatment records received by VA after the July 2013 rating decision became final reflect that in March 2013 the Veteran’s treating physician noted that left knee pain had become worse since the left knee had to compensate for the right knee during recovery from right knee surgery. In a March 2017 letter, the physician stated that for many years the Veteran adjusted his walk as a mail carrier, placing much of his weight on the left knee. As a result, he now as severe osteoarthritis of the left knee as well. The Board finds that the March 2013 private treatment records and March 2017 letter relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. The claim of service connection for a left knee disability is therefore reopened and will be addressed on the merits below. 2. Entitlement to service connection for a left knee disability as secondary to a right knee disability The Veteran claims service connection for a left knee disability as secondary to his service-connected right knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 claimant 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran underwent a VA examination in January 2013. In an opinion subsequently provided in June 2013, the examiner opined that his left knee arthritis was clearly not caused or aggravated by his right knee disability. This opinion was based on the rationale that the Veteran had no complaints of left knee pain during active duty and since discharge had placed stress on the left knee in his work as a mail carrier. As discussed above, private treatment records reflect that in March 2013 the Veteran’s treating physician noted that left knee pain had become worse since the left knee had to compensate for the right knee during recovery from right knee surgery. In a March 2017 letter, the physician stated that for many years the Veteran adjusted his walk as a mail carrier, placing much of his weight on the left knee. As a result, he now as severe osteoarthritis of the left knee as well. The Board finds that the evidence is at least in equipoise that the Veteran’s left knee arthritis was caused or aggravated by his service-connected right knee disability. His private physician provided an opinion in March 2017 supported by a rationale explaining how his right knee disability caused an altered gait that put more stress on the left knee. This opinion is consistent with treatment records from March 2013, noted years before such an opinion was requested. The only contradicting medical opinion was provided by the VA examiner in June 2013, but this opinion is inadequate. It is unclear why, when specifically asked for an opinion on secondary service connection, the examiner relies on the lack of left knee symptoms noted in service. The examiner’s conclusion that the left knee disability was caused by the stress put on the left leg in the Veteran’s work as a mail carrier is actually consistent with the private opinion, but the examiner failed to address the possibility that the right knee disability could be involved at the same time. The private physician’s opinion is thus the most probative evidence of a relationship between the knee disabilities. For these reasons, the Board finds that the evidence is at least in equipoise that the Veteran’s left knee arthritis was caused or aggravated by his service-connected right knee disability, and service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.