Citation Nr: A21018488 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 190731-28153 DATE: November 18, 2021 ORDER New and relevant evidence has been received sufficient to readjudicate the claim of service connection for left knee condition. New and relevant evidence has been received sufficient to readjudicate the claim of service connection for back condition. Entitlement to service connection for left knee condition is granted. Entitlement to service connection for back condition is granted. FINDINGS OF FACT 1. New evidence was received after the January 2019 denial that is relevant to the issues of entitlement to service connection for left knee and back conditions. 2. The Veteran's left knee condition is etiologically related to his active service. 3. The Veteran's back condition is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and relevant evidence having been received, the criteria for readjudicating the issue of entitlement to service connection for left knee and back conditions have been met. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.156, 3.2501. 2. The criteria for entitlement to service connection for left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1986 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran filed a VA Form 20-0995 for a supplemental claim in May 2019 after the RO, in January 2019, denied his claims for service connection for left knee and back conditions. The RO issued a rating decision in June 2019, which did not find sufficient new and relevant evidence to reconsider the Veteran's claims. The Veteran timely appealed the rating decision by submitting a VA Form 10182 and requested the hearing docket, which allows the submission of additional evidence within 90-days after a hearing is held pursuant to the Veterans Appeals Improvement Modernization Act of 2017 (AMA). 38 C.F.R. § 20.303 (2019). On March 3, 2021, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is associated with the claims file. Therefore, the Board will consider the evidence of record as of the date of the June 27, 2019 AMA rating decision, as well as between March 3, 2021 and June 3, 2021. Id. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to service connection for left knee and back conditions, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. However, as the Board is herein granting the Veteran's claims, there is no need for the Veteran to file a supplemental claim. New and Relevant Evidence Claims In January 2019, the AOJ denied service connection for left knee and back conditions. The Veteran filed a supplemental claim in May 2019 seeking review of this decision. In June 2019, the AOJ determined that new and relevant evidence had not been received sufficient to readjudicate the claims in the April 2019 rating decision. VA will readjudicate a previously denied claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). Under the prior standard for readjudicating previously denied claims, claimants would have to submit "new and material evidence" to "reopen" their claims. New evidence means existing evidence not previously submitted to agency decision makers. 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 C.F.R. § 3.156(a). Because the Veteran in this case has pursued an appeal under the AMA, his burden to provide "new and material evidence" is reduced. Instead, the evidence necessary for VA to readjudicate his claim must be merely "new and relevant." The new standard is a lower standard that the "new and material evidence" standard because the statutory definition of "relevant" does not require that the new evidence relate to an unestablished fact or raise a reasonable possibility of substantiating the claim. The Board will consider this lower standard in deciding the Veteran's appeal. Here, along with the supplemental claim, the Veteran submitted private medical treatment records. This evidence was not previously of record at the time of the prior rating decision and tends to prove or disprove the claims for service connection for left knee and back conditions. See 38 C.F.R. § 3.156(d). Accordingly, as this evidence is new and relevant, the claim will be readjudicated. Service Connection 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee condition is granted. The Veteran contends that his left knee condition is related to an injury he sustained while in service. First, a January 2020 private opinion reflects that the Veteran has bilateral knee osteoarthritis. Therefore, the first element of service connection is met. Shedden, 381 F.3d at 1166-67. Second, favorable finding from the June 2019 rating decision indicates that service treatment records (STRs) from October 1986 to August 1990 show treatment for a right knee injury. Thus, the second element of service connection is also met. Id. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed left knee condition and his service. On this matter, the evidence conflicts. The Veteran underwent a VA examination in January 2019, in which the examiner noted the Veteran reported bilateral knee pain. He opined that the Veteran' left knee condition was less likely than not related to service because there was no evidence of history of injury, examination, diagnosis, or treatment to support a chronic left knee injury. A January 2020 private opinion provided by Dr. S.B. was associated with the Veteran's claims file in April 2021. Dr. S.B. stated that the Veteran has been under his medical care for the past 10 years and noted that the Veteran suffered a fall in 1988, during which he sustained injuries causing pain in both knees. The Veteran also reported that he was aboard ship for 42 months with running on steel decks that continued to affect his knees. Dr. S.B. opined that the mechanism of his fall would explain the Veteran's ongoing bilateral knee issues to a reasonable medical certainty. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise, especially in light of the Veteran's credible testimony that he has experienced left knee problems since service. See March 2021 Hearing Transcript. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. See Shedden, 381 F.3d at 1166-67. As all three elements of service connection are met, service connection for left knee condition is warranted. 2. Entitlement to service connection for a back condition is granted. The Veteran contends that his back condition is related to active service. First, favorable finding from the June 2019 rating decision show that the Veteran has a diagnosis of lumbar degenerative disc disease. Accordingly, the first element of service connection is satisfied. Shedden, 381 F.3d at 1166-67. Second, regarding the in-service element, the Veteran's STRs lack any documentation concerning back problems. However, the Veteran has credibly testified that his back pain began when he injured his shoulder during service, and the shoulder injury is noted in a September 1988 notation. See March 2021 Hearing Transcript; December 1996 STR Medical, p. 72. Additionally, multiple buddy statements from servicemembers who served with the Veteran stated that, during service, the Veteran often complained of back pain, that medical would routinely issue Tylenol or aspirin and they would be told to go back to work, and that service members were told to keep going without offered treatment. See March 2021 Email Correspondence. Affording the benefit of the doubt to the Veteran, the Board finds that the second element of service connection is also satisfied. Shedden, 381 F.3d at 1166-67. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed back condition and his service. On this matter, the evidence preponderates in favor of nexus. A January 2020 private opinion provided by Dr. S.B. was associated with the Veteran's claims file in April 2021. Dr. S.B. stated that the Veteran has been under his medical care for the past 10 years and noted that the Veteran suffered a fall in 1988, sustaining injuries that caused pain and stiffness in his lumbar spine. The Veteran also reported that he was aboard ship for 42 months with running on steel decks that continued to affect his back. Dr. S.B. opined that the mechanism of his fall would explain the Veteran's ongoing low back issues to a reasonable medical certainty. (Continued on the next page) After careful consideration, resolving all reasonable doubt in the Veteran's favor, and with no conflicting evidence, the Board finds that the evidence preponderates in favor of nexus. The Board finds that the third element of service connection is established. See Shedden, 381 F.3d at 1166-67. As all three elements of service connection are met, service connection for back condition is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate 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.