Citation Nr: 21067417 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-11 182 DATE: November 4, 2021 ORDER The application to reopen a claim of service connection for right knee disability is granted. Entitlement to service connection for bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia is granted. Entitlement to service connection for migraine headaches is granted. REMANDED The application to reopen a claim of service connection for Bell's palsy is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for right knee disability was originally denied in a January 1994 rating decision on the basis that there was no medical evidence of any such disability that was related to service; the Veteran's service treatment records were not in VA's possession at the time of this decision. 2. The Veteran's claim of service connection for right knee disability was readjudicated and again denied in a March 2013 rating decision on the basis that this disability was not related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. Evidence received since the March 2013 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for right knee disability, the absence of which was the basis of the previous denial. 4. The Veteran's bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia is related to service. 5. The evidence is at least evenly balanced as to whether the Veteran's migraine headaches began during active service. CONCLUSIONS OF LAW 1. The AOJ's March 2013 decision that denied the claim of service connection for right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the March 2013 AOJ decision is new and material and reopening of the claim of service connection for right knee disability is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to December 1991, which includes service in the Southwest Asia theater of operations. She had additional service with the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) from a July 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is granting the application to reopen the claim of service connection for right knee disability and is awarding service connection for bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia and migraine headaches (thus reflecting a full grant of the benefits sought with respect to these issues), the fact that the application to reopen the claim of service connection for Bell's palsy is being remanded for further development, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. As for characterization of the issues on appeal, claims of service connection for right knee disability and Bell's palsy were denied by way of a final March 2013 rating decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for right knee disability and Bell's palsy. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for right knee disability and has re-characterized the claim of service connection for Bell's palsy as an application to reopen the claim of service connection for Bell's palsy. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for right knee disability The Veteran's claim of service connection for right knee disability was originally denied in a January 1994 rating decision on the basis that there was no medical evidence of any such disability that was related to service. Her service treatment records were not in VA's possession at the time of this decision and they were received by VA and associated with the claims file later in 1994. The Veteran's claim of service connection for right knee disability was readjudicated on a de novo basis and again denied in a March 2013 rating decision on the basis that this disability was not related to service. The Veteran was notified of the March 2013 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the March 2013 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The pertinent new evidence received since the March 2013 denial of service connection for right knee disability includes examination reports from D. Blackmon, MD dated in October 2014 and November 2015. This additional evidence includes medical opinions that the Veteran's bilateral knee disability is related to service. Therefore, the additional evidence pertains to an element of the claim of service connection for right knee disability that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran's current right knee disability is related to service. The evidence is, therefore, new and material, and the claim of service connection for right knee disability is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis and organic diseases of the nervous system (e.g., migraine headaches) are included among the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 1. Entitlement to service connection for bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia The Veteran contends that she has current bilateral knee disability which is related to knee problems she experienced in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia, and that this disability is related to service. Medical records, including a July 2015 VA knee examination report and the November 2015 examination report from Dr. Blackmon, reveal that the Veteran has been diagnosed as having bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia. Therefore, current bilateral knee disability has been demonstrated. The Veteran has reported that she fell on and injured both knees in service during basic training and that she continued to experience bilateral knee pain throughout the remainder of her service. Service treatment records reveal that she was treated for left knee pain following an injury while running in September 1988. Examination revealed that pain was produced when adducting the upper leg and abducting the lower leg, and the Veteran was diagnosed as having patellofemoral pain syndrome. In June 1988, she was treated for a 3 year history of intermittent right knee pain while running and jumping. There was right knee tenderness and painful motion and the Veteran was diagnosed as having a possible strained medial collateral ligament. An undated service treatment record indicates that she was evaluated for right knee problems, that there was bilateral patellar crepitation, and that a diagnosis of patellofemoral pain syndrome was provided. Also, the Veteran reported on a September 1991 report of medical history form completed for purposes of separation from service that she experienced right knee pain while running. The Veteran's DD Form 214 indicates that she served in Southwest Asia from December 1990 to May 1991 and she has reported that her unit was attacked by an enemy scud missile while at a port in Saudi Arabia, which resulted in multiple casualties (see e.g., the report of a January 2013 VA psychiatric examination). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report her exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts her reports. Therefore, the Board finds that her reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Southwest Asia. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that she incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran's reports of bilateral knee problems in combat situations in service are satisfactory evidence, the reports are consistent with the circumstances of her service in Southwest Asia, there is no clear and convincing evidence to the contrary, and her service treatment records confirm that she experienced bilateral knee problems in service. Therefore, the presence of bilateral knee symptoms during active service is established. Moreover, the Veteran's post-service medical records and lay statements indicate that she has reported continuous bilateral knee symptoms in the years since service. As for whether the Veteran's claimed bilateral knee disability is related to her knee problems in service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The physician who conducted a February 2013 VA knee examination opined that the Veteran's claimed right knee disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in caused by service. He reasoned that the Veteran's knee symptoms were similar to what she experienced in service, but that there was no evidence of chronicity. She reported that her symptoms were ongoing, but there were no progress note entries regarding a knee condition (only leg cramps) over several years when using VA, and she reported that she did not see any private doctors for her right knee disability. Also, any discussion regarding the right knee disability would also have to take into account the effects of the Veteran's occupation (a letter carrier who walked 5 miles per day for the previous 9 years) and weight gain (from 130 pounds in service in 1987 to 215 pounds in 2003, with a body mass index indicative of severe obesity). It would seem less likely that the Veteran had knee problems bothering her for over 20 years, and just recently mention the problem. Overall, it was not likely ("less likely as not") that the Veteran's current right knee disability was related to events that occurred during service, and were likely ("more likely as not") related to age, years of walking on the job, and her weight gain and severe obesity. In the October 2014 examination report, Dr. Blackmon explained, in pertinent part, that the Veteran experienced bilateral knee pain and that she reported that the pain started in service in 1988 when she fell while running in basic training. She was diagnosed with a contusion and placed on quarters to rest. She experienced intermittent knee pain that progressively worsened over time and had continued in the years since service. Dr. Blackmon opined that it was likely ("more likely than not") that the Veteran's bilateral knee disability was secondary to her traumatic injury in service in 1988, which had progressed over time. She should have received more aggressive treatment during service and due to the non-aggressive treatment of her knees, they continued to worsen. Arthritis is known to be progressive and Dr. Blackmon believed that the Veteran suffered a traumatic chondromalacia of the patella that worsened over time and never resolved. Therefore, her knee disability was "service connected and compensatory by the military." The physician who conducted the July 2015 VA knee examination opined that the Veteran's claimed right knee disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned, in pertinent part, that the Veteran was in service for 3 years and had been out of service for 24 years. She did experience some knee trouble in service, but the intervening 24 years since that time were statistically much more likely to be the major contributor to the current knee disability. During those intervening 24 years, there were significant stressors put on the Veteran's knees, with persistent running for many years and with walking a rigorous daily 5-mile postal service mail route for many years. Also, the Veteran's weight continued to climb over the years up to approximately 240 pounds with a body mass index of 41. Obesity is a tremendously important contributor to knee pain and degenerative joint disease. Moreover, despite all of the wear and tear on the Veteran's knees, x-rays did not yet show significant joint disease/destruction. The fact that the Veteran had just mild degenerative joint disease 24 years after service made it even less likely that her 3 years of military service did major irreparable damage to either knee. If lasting damage had been done, there would be more joint disease seen on x-ray 24 years later. The fact that the degenerative joint disease was only very mild pointed to the knee trouble being more of a recent problem, and not going back 24 years. Additionally, the examiner reasoned that there was no actual documentation showing that right knee trouble persisted and caused ongoing trouble after the Veteran left service in 1991. She was seen at a VA clinic in 2003, but there was no report of knee trouble at that time. The next documentation about knee trouble was not until the 2013 examination. Therefore, despite the fact that the Veteran had knee trouble in service, the evidence did not support a finding that her current right knee disability was due to service. Rather, the evidence suggested that the major knee stressors were more recent. In the November 2015 examination report, Dr. Blackmon diagnosed the Veteran as having bilateral patellofemoral chondromalacia and opined that this disability was "certainly . . . due to her military involvement." There was no further explanation or rationale provided for this opinion. The February 2013 and July 2015 opinions are both of limited probative value because they are partially based on the absence of clinical evidence of treatment for right knee symptoms for many years following service, and they do not take into account the Veteran's reports of continuous right knee symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Dr. Blackmon's October 2014 opinion, by contrast, is based upon treatment of the Veteran and consideration of her reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the October 2014 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, although Dr. Blackmon did not provide any specific explanation or rationale for the November 2015 opinion, the physician provided the opinion based upon treatment of the Veteran and consideration of her reported history. This opinion is therefore entitled to some probative weight and supports the conclusion that the Veteran's claimed bilateral knee disability is related to service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the Veteran has been diagnosed as having current bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia, she experienced bilateral knee symptoms in service, and the most probative medical opinions of record indicate that her current bilateral knee disability is related to her knee injuries in service. Therefore, service connection for bilateral knee osteoarthritis, patellofemoral pain syndrome, and patellofemoral chondromalacia is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for migraine headaches The Veteran contends that she has current headache disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of migraine headaches, and that the evidence is at least evenly balanced as to whether this disability began during active service. Medical records, including the report of a July 2015 VA headache examination, show that the Veteran has been diagnosed as having migraine headaches. Therefore, current headache disability has been demonstrated. Moreover, there is evidence of headaches in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran reported during the July 2015 examination and the October 2021 hearing that she began to experience headaches in service in 1991 after she sustained a concussion during Operation Desert Storm. As explained above, the Veteran participated in combat/was exposed to incoming enemy fire while serving in Southwest Asia. Her reports of headaches in combat situations in service are satisfactory evidence, the reports are consistent with the circumstances of her service in Southwest Asia, and there is no clear and convincing evidence to the contrary. Therefore, the presence of headaches during active service is established. See 38 U.S.C. § 1154. Moreover, the Veteran's post-service medical records and lay statements indicate that she has reported continuous headaches in the years since service. The Veteran is competent to report continuous headaches in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence that explicitly contradicts her reports and they are generally consistent with the evidence of record and the circumstances of her service. Therefore, the Board concludes that the Veteran's reports of continuous headaches in the years since service are credible. In sum, the evidence reflects that the Veteran experienced headaches in service and that there have been continuous headaches in the years since service. She has also been diagnosed as having current migraine headaches. There is no specific medical opinion that is contrary to a conclusion that the current migraine headaches had their onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND The application to reopen a claim of service connection for Bell's palsy is remanded. The Veteran contends that she began to experience symptoms of Bell's palsy affecting her left face during an Army Reserve drill in 1995 or 1996 and that she has experienced continuous symptoms in the years since that time. Her service records indicate that she served with the Army Reserve from December 1991 to October 1996. A remand is necessary for the AOJ to attempt to verify the Veteran's periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during her Army Reserve service. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Muskogee Vista electronic records system and are dated to May 2016. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify as specifically as possible the date on which she began to experience Bell's palsy during service, as well as the location and name of any VA or private medical facility where she has received treatment for Bell's palsy and its residuals, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for Bell's palsy and its residuals from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the Muskogee Vista electronic records system for the period since May 2016; and all such relevant records from any other sufficiently identified VA facility. 3. Obtain the Veteran's complete service personnel records, to include all documents pertaining to her service in the Army Reserve (to include the period from December 1991 to October 1996). Verify all active duty for training and inactive duty training dates for her Army Reserve service, from December 1991 to October 1996. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.