Citation Nr: 21071553 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-22 474A DATE: November 30, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for a right knee disability is granted. Service connection for a right knee disability is granted. REMANDED Service connection for a left knee disability, to include as secondary to service-connected right knee disability, is remanded. FINDINGS OF FACT 1. Service connection for right knee disability was denied in a December 2003 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the December 2003 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for a right knee disability. 3. The evidence is in equipoise on whether the Veteran's right knee disability is etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for right knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for service connection right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1983 to May 2003. In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. 1. New and material evidence to reopen the claim for service connection for right knee disability. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran originally submitted a claim for service connection for a right knee condition in June 2003, which was denied in a December 2003 rating decision on the basis that the Veteran did not have a current disability for his right knee. The Veteran was notified of the decision and he did not appeal it. As such, the decision is final. The additional relevant evidence received since the December 2003 rating decision includes private and VA medical opinions and examinations for the Veteran's right knee, a diagnosis of a right knee disability, lay statements from the Veteran about constant right knee pain since service, and assertions during a November 2020 Board hearing about the Veteran having obtained private opinions regarding a medical nexus for his right knee. As these materials were not associated with the claims file at the time of the prior decision, it is new evidence. A review of this additional evidence reveals that it tends to prove or disprove a matter at issue with respect to the Veteran's service connection claim for a right knee disability. Thus, for these reasons, the claim for service connection for a right knee disability is reopened. 2. Service connection for right knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Veteran contends that his right knee disability is related to service. Specifically, he asserts that during his last tour of duty, as a Special Ops Analyst, on or about 1990 in Florida, he injured his right knee while undergoing a physical training session. Further, the Veteran contends that his right knee pain that developed during service developed into his current diagnosis for arthritis of the right knee. The Board concludes that the Veteran has a current right knee disability that is related to an in-service injury. An October 2016 VA examination revealed that the Veteran has a current diagnosis of right knee joint osteoarthritis. Thus, the question becomes whether the Veteran has a current disability related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2016 VA examination and opinion. The examiner concluded that the Veteran's right knee disability is less likely as not caused by or a result of service. The rationale was that there was one episode of a right knee problem in 1985 with subsequent questionnaires all negative for the knee condition. The VA examiner found that there was no medical evidence of connection between the current right knee disability and military service. The evidence in support of the claim includes two private nexus opinions by Dr. T.M.V. in January 2018 and February 2018, and the Veteran's November 2020 Board hearing testimony. In the January 2018 private opinion, Dr. T.M.V., opined that the Veteran's history and physical consistent with primary osteoarthritis with no red flags is most likely secondary to overuse and repetitive trauma of being active duty military. See November 2020 Board hearing transcript (noting the Veteran stated that he has seen Dr. T.M.V. a number of times). In the February 2018 private opinion, Dr. T.M.V., opines that the Veteran is permanently disabled due to his right knee condition. Dr. T.M.V. stated that the Veteran cannot resume the daily activities that he was able to complete prior to the right knee injury he sustained while in the military. Additionally, Dr. T.M.V. indicated that the Veteran has chronic knee pain that began after being injured on active service. Dr. T.M.V. noted that he reviewed parts of the Veteran's military record that document the injury. See also October 2013 private treatment record (indicating a private doctor noted the Veteran to have chronic right knee pain since 1990). The Veteran testified before the undersigned in November 2020. He endorsed continuous right knee pain since first experiencing the pain around 1990 when he injured his right knee while undergoing a physical training session. The Veteran explained that he did not seek medical treatment for this disability because "there's this unwritten code for special ops. Basically, you are not supposed to admit pain." See November 2020 Board hearing transcript P. 5. Instead, he said that he used over-the-counter pain relief medications. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right knee disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for a left knee disability. Unfortunately, the Veteran's service connection claim for a left knee disability, to include as secondary to his service-connected right knee disability, must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As noted above, the Veteran's claim for service connection for a right knee disability is granted. The Veteran contends that his left knee disability is from overcompensating on his left knee because of constant right knee pain since 1990. See November 2020 board hearing. Moreover, as no opinion has been obtained addressing the Veteran's secondary theory of entitlement, further medical clarification is also required. The matter is REMANDED for the following action: 1. Obtain a VA addendum medical opinion regarding the Veteran's left knee disability. The Veteran should receive another in-person VA examination if the clinician deems it to be necessary. The examiner must provide a complete written history, including all statements and reports made by the Veteran as to his military service. The examiner should provide the following opinions: i) Whether the Veteran's left knee disability is at least as likely as not (a probability of 50 percent or greater) related to active service or had its onset in service. ii) Whether the Veteran's left knee disability is at least as likely as not (a probability of 50 percent or greater) related to the service-connected right knee disability, or any other service-connected disability. iii) Whether the Veteran's left knee disability is at least as likely as not (a probability of 50 percent or greater) aggravated by the service-connected right knee disability, or any other service-connected disability. When providing the following opinions for the Veteran's left knee disability, the examiner MUST discuss and comment on: The Veteran's lay statements that his current left knee disability is from overcompensating on his left knee due to constant right knee pain since injuring it in active service. A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.