Citation Nr: 21066549 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-02 162 DATE: November 1, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a left knee disability is granted. Service connection for a left knee disability is granted. FINDINGS OF FACT 1. A June 2014 rating decision continued a prior final denial of the claim for service connection for a left knee disability. The Veteran did not perfect an appeal on this issue, and new and material evidence was not received within the time period needed to prevent the decision from becoming final. 2. The evidence associated with the file since the June 2014 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for a left knee disability. 3. The Veteran began experiencing symptoms of his current left knee disability during service, and he has continued to experience such symptomatology since his separation from service. CONCLUSIONS OF LAW 1. The June 2014 rating decision that continued a prior denial of service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. The evidence received since the June 2014 rating decision is new and material evidence and serves to reopen the Veteran's claim for service connection for a left knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to February 1991. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. New and Material Evidence Left Knee Disability A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) decided a reopening question, the Board of Veterans' Appeals (Board) must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When deciding whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2014 rating decision, the RO continued a prior final denial for service connection for the Veteran's left knee disability because the prior final denial was based upon the finding that the Veteran's left knee disability resulted from a condition which pre-existed active service and was not aggravated beyond its normal progression during such serviceand because the Veteran had retracted his secondary claim to service connect his left knee as due to his low back disability during a March 2014 VA examination. The Veteran did not perfect an appeal on this denial, nor did he submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the June 2014 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Evidence added to the record since the June 2014 rating decision includes the Veteran's July 2021 testimony before the Board, during which he explained that, although he had injured his left knee years before entering service, that injury had healed by the time he entered service. Also at the recent hearing, the Veteran further detailed how he sustained an injury to his left knee in service which caused his current condition. This evidence, presumed as credible for new and material purposes, relates to an element of his appeal that was not met when the claim was last denied in June 2014, as it refutes the pre-existing nature of his left knee disability. Thus, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for a left knee disability. As such, the claim is reopened. Service Connection- Left Knee Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). A layperson is competent to report on the onset and continuity of his or her current 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). The Veteran seeks service connection for a left knee disability which he asserts onset in service. An April 1991 VA examination report noted that the Veteran had a diagnosis of status post left knee medial meniscectomy. Although the Veteran was also afforded a March 2014 VA knee conditions examination, the examiner did not examine the Veteran's left knee after speaking with him and determining that his left knee was not secondary to his back disability. There are also no medical treatment records spanning the period which contain a diagnosed left knee disability. Regardless, a diagnosis of status post medial meniscectomy is not one which can resolve, given that the left knee will forever be in such a status following a meniscectomy, which, in this case, occurred during his service. Thus, the Board finds that the 1991 diagnosis of his left knee status post medial meniscectomy is a current diagnosis. As such, the current disability prong of this claim is met, and the remaining is issue is whether the current disability can be related to any in-service event or whether it onset therein. Regarding any findings in the file by VA that a left knee condition was due a pre-existing injury, the Board notes that a veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). In this regard, the Board notes that the service treatment records (STRs) reveal that the Veteran was clinically evaluated as normal as to all body systems at his February 1968 entrance examination. Although he reported having, or having had, a history of a "trick" or locked knee on the concurrent entrance report of medical history, the examiner's comments on this document explain that the Veteran had experienced knee pain five years prior, but that the issue had since resolved without further recurrences. In this case, the Veteran's left knee was sound upon entry, as per his entrance examination documents which did not note that a left knee condition existed at the time. Further, no medical opinions have been obtained which state that the Veteran's left knee disability clearly and unmistakably preexisted service. Although the RO denied the Veteran's claim in 1991 because it found that his left knee meniscus injuries pre-existed service, this was based upon his report of having injured his knees prior to service when he underwent his left knee meniscectomy in service in 1968. The RO further noted that there was no evidence that the Veteran injured his left knee in service. However, as noted previously, the Veteran testified before the Board in July 2021 that he injured his knee in service, specifically by falling into a hole. As such, the Board finds that the totality of the pertinent evidence does not support a finding that the Veteran's left knee condition clearly and unmistakably preexisted service. VA has not shown that his current left knee condition clearly and unmistakably pre-existed service, and the presumption of soundness as to his current left knee disability has not been rebutted in this case, despite the findings made by the RO in denying this claim thirty years ago. As to whether the Veteran's left knee condition, which did not preexist service, is related to service or onset therein, the Veteran testified at the July 2021 Board hearing that he has experienced symptoms of swelling, limited movement, and pain is his left knee since injuring it in service when he fell in a hole in the ground. The Board finds the Veteran's lay reports as to the onset of his left knee symptoms to be credible, and his testimony alone is sufficient to establish the criteria for service connection for his left knee disability. As such, his claim for service connection for a left knee disability is allowed, as it is a condition for which a continuity of symptomatology has been shown since active service. Moreover, no VA examiner has opined on the issue of direct service connection for the Veteran's left knee disability, and there is no competent medical evidence of record to refute his contentions of an in-service onset. In light of the above, the Board finds the Veteran's competent, credible reports of his left knee disability symptoms having onset in active service to be the most probative evidence of record regarding the etiology of his claimed condition. Thus, the weight of the evidence supports a finding that his left knee disability symptoms onset in service and have continued since then. Accordingly, service connection for a left knee disability is warranted, as it is a current disability that onset in the Veteran's active service. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.