Citation Nr: 21063152 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-12 192 DATE: October 13, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right knee disability is granted. Entitlement to service connection for right knee disability, diagnosed as meniscal tear with chondromalacia, is granted. FINDINGS OF FACT 1. An unappealed April 1973 rating decision denied service connection for a right knee disability; new and material evidence was not received within one year of that decision. 2. Additional evidence received since the final April 1973 rating decision relates to previously unestablished facts necessary to substantiate the service connection claim for right knee disability. 3. Resolving reasonable doubt in the Veteran's favor, his diagnosed right knee disability is at least as likely as not etiologically related to his active service. CONCLUSIONS OF LAW 1. The April 1973 rating decision that denied service connection for a right knee disability is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1972). 2. The criteria to reopen the previously denied claim for service connection for a right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The criteria for service connection for the current right knee disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to April 1973. This current appeal before the Board of Veterans' Appeals (Board) arose from a November 2017 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) continued the prior denial of service connection for internal derangement of the right knee (claimed as right knee condition) because submitted evidence was not new and material. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. New and Material Evidence Generally, a final decision issued by the AOJ may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105(c), (d). The exception to this rule is found at 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). Where VA has previously denied a claim because a service connection element is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran's original service connection claim for a right knee condition was denied in an April 1973 rating decision on the basis that the claimed disability existed prior to his entry into active service and was not aggravated by his service. The Veteran was notified of the decision and his appellate rights in a May 1973 letter, but he did not initiate an appeal. See 38 C.F.R. §§ 19.20, 19.21. There is no indication that new and material evidence pertinent to the claim was received within one year following the decision, or that additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Thus, the April 1973 decision became final. See 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1972). Evidence of record at that time of the April 1973 rating decision included the Veteran's service treatment records (STRs), which noted his history of right knee problems during his service and his prior history of right knee surgery prior to service, and his April 1973 claim, wherein he contended that he had undergone a right knee surgery prior to service, and that his knee was aggravated during his active service. New evidence pertinent to this service connection claim includes VA clinical treatment records dated through January 2018, which reflect continuing treatment for right knee pain, and include May 2017 MRI findings noting a small tear, post-operative changes with truncation of the body and posterior horn of medial meniscus from previous partial medial meniscectomy, moderate chondromalacia with narrowing of the medial joint compartment with minimal marginal spurring; the report of a January 2018 VA examination, which noted the Veteran's right knee meniscal tear, and referenced his reported history of the disability; and the transcript from the Veteran's July 2021 Board hearing, which contains the Veteran's testimony pertaining to his status of his knee disability prior to and during his active service, specifically noting that his knee got progressively worse, and that he continued to have problems with his knee disability since his separation from service through to the current day. Given the "low threshold" standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the April 1973 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a), as it provides significant evidence pertaining to the status of the Veteran's right knee at the time of his of entry into active service, the onset and progression of right knee symptoms during service, and the continuity of his right knee symptoms since his separation from service. Thus, the new evidence tends to point to aggravation of the Veteran's right knee symptoms during service, and indicates that the symptoms continued since service; and therefore, provides a basis for awarding service connection. Under these circumstances, the Board concludes that the criteria for reopening the service connection claim for right knee disability are met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility, and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, 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(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor on certain elements of the claim, the Board finds that service connection for the current right knee disability is warranted. First, in addressing the matter of current disability, the Board notes that May 2017 MRI findings, reflecting a small tear, post-operative changes with truncation of the body and posterior horn of medial meniscus from previous partial medial meniscectomy, and moderate chondromalacia with narrowing of the medial joint compartment with minimal marginal spurring, clearly establish that the Veteran has a current right knee disability. With respect to in-service incurrence of the claimed right knee disability, initially, the Board notes that there is some discrepancy in the record with respect to whether the Veteran's right knee disability preexisted his entry into active service. In accordance with VA laws and regulations, a veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Id.; VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (2004); Wagner, 370 F. 3d 1089. An injury or disease that has been determined to be preexisting will be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). In the instant case, the Veteran reported in a July 1972 report of medical history that he had undergone a knee operation in November 1968, and that he had two weak knees. His July 1972 pre-induction examination report noted that he had undergone a right knee meniscectomy in 1968, and that in 1971 his knee was found to be stable. The report indicated that no disqualifying defects or communicable diseases were noted after two additional evaluations of the knee. In this regard, a July 1972 evaluation report noted the Veteran's surgical history, and indicated that while he believed he could not run as well, he had played varsity basketball and semi-professional basketball, indicating he could run well, and that he had not had any recent treatment for the knee. The examiner concluded that the Veteran had had good results from surgery and that he met the acceptance standards. Thus, the Veteran was accepted into active service. Accordingly, the Board finds that, while a history of the Veteran's prior right knee disability was noted on his induction examination documents, a clearly identifiable knee disability was not noted at the time of his entrance into active service. See 38 C.F.R. § 3.304(b)(1). Further review of the Veteran's STRs indicates that he began to have significant problems with his right knee during service. A March 1973 evaluation report noted that he had persistent symptoms of pain since surgery, but that his symptoms increased during basic training. The reported noted that, while he completed his basic training and advanced individual training, he had to be placed on physical training waivers, and that he had been on sick call multiple occasions since November 1972. The diagnosis noted in the report was symptomatic internal derangement of the right knee, confirmed by X rays, which demonstrated a retained posterior horn of the medial meniscus. The Veteran testified during his Board hearing that, when he entered basic training, he became a squadron leader, that he performed running, jumping and falling exercises, and that he began to experience severe aching in his knee. He affirmed that the knee pain became progressively worse. While the January 2018 VA examiner opined that the Veteran's right knee disability was clearly and unmistakably not aggravated beyond its natural progression by in service injury, the opinion is based on a lack of evidence of right knee disability following the Veteran's separation from service, and does not specifically address the evidence of increasing severity of the disability during service. Accordingly, the examiner's opinion is of minimal probative value, and there is no clear evidence unmistakably attributing the increase in severity of the right knee disability to the natural progression of the disability. Based on the foregoing, the Board finds that there is no clear and unmistakable evidence showing that the Veteran's right knee disability both preexisted his entry into active service and was not aggravated during his service. Where, as here, VA is unable to rebut the presumption of soundness, the claim becomes one for service connection based on incurrence of disability in service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on in-service incurrence). As for the matter of a nexus between current right knee disability, consisting of meniscal tear and chondromalacia and the Veteran's service, the Veteran has credibly reported having a continuation of his right knee symptoms since his separation from service, and he is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, the May 2017 MRI findings, which noted a small tear, post-operative changes with truncation of the body and posterior horn of medial meniscus reveals essentially the same disability as that noted during his active service, where X ray findings revealed internal knee derangement, with retained posterior horn of the medial meniscus at that time. Thus, his assertions together with the medical evidence of record establish a continuity of his right knee symptoms since his service separation. Overall, the Board finds that the weight of the evidence supports a finding that the Veteran's current right knee disability is at least as likely as not etiologically related to his active service. He is competent to report the circumstances of his knee pain during service and the continuation of such symptoms since his separation from service. See Layno, 6 Vet. App. at 470. The Veteran's reports are consistent with the medical evidence which include in-service medical findings of worsening right knee pain symptomatology, and MRI findings demonstrating essentially the same right knee findings as those demonstrated on X rays during service. Thus, affording the Veteran the benefit of the doubt, the Board finds that he has experienced right knee symptoms since his active service. Accordingly, service connection for the current right knee disability is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.