Citation Nr: 21075514 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-26 491 DATE: December 20, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for a residual leg injury, to include a healed left knee abrasion (claimed as left knee condition) is reopened. Entitlement to service connection for a left knee disability is granted. FINDINGS OF FACT 1. A July 1989 rating decision denied entitlement to service connection for a left knee condition. The Veteran was notified of the denial but did not submit new and material evidence or a Notice of Disagreement (NOD) within one year. 2. Evidence received since the July 1989 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left knee condition. 3. The Veteran's competent and credible lay evidence establishes continuity of symptomatology since military service. CONCLUSIONS OF LAW 1. The July 1989 rating decision is final; the criteria to reopen the claim of entitlement to service connection for a residual leg injury, to include a healed left knee abrasion (claimed as left knee condition) are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. § 1110, 1131, 1154(b), 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to July 1975 and October 1975 to February 1989. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2014 rating decision by the U.S. Department of Veterans Affairs (VA). The Veteran participated in a video hearing with the undersigned in August 2021. The transcript is of record. New and material evidence having been received, the claim of entitlement to service connection for a residual leg injury, to include a healed left knee abrasion (claimed as left knee condition) is reopened A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §7105; 38 C.F.R. §20.1103. 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. New evidence is evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App.510, 512-513 (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, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App.273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). A July 1989 rating decision denied entitlement to service connection for a left knee condition. The Veteran was notified of the denial but did not submit new and material evidence or an NOD within one year. The denial therefore became final. Evidence received since the July 1989 rating decision includes hearing testimony, lay evidence from the Veteran and his family, medical opinion evidence, VA examination report, and VA treatment records. These are new, as they were not before the agency of original jurisdiction in July 1989. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left knee condition. Specifically, the evidence pertains to nexus and current disability elements. The Board thus reopens the Veteran's claim of entitlement to service connection for a residual leg injury, to include a healed left knee abrasion (claimed as left knee condition) for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Entitlement to service connection for a left knee disability Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends his left knee condition is due to his time in service. The Veteran has a current diagnosis of degenerative arthritis to his left knee. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. As such the first element of service connection has been met. The record, including the Veteran's service treatment records (STRs), show the Veteran was in a biking accident that resulted in an abrasion on his left knee while in service. As such the second element of service connection has been met. Next the Board turns to the third element of a nexus. During the hearing with the undersigned, the Veteran testified that he has been in pain every day since his in-service injury. He stated that the pain and swelling from the accident in service never resolved and he continued to run on the knee for the rest of his 22 years in the Marines. He later learned that there was a torn meniscus in the knee that was eventually removed, and the knee now has arthritis. He contends that the current arthritis is the result of the injury in service and that he experienced the symptoms of pain and swelling from service to the present. His testimony is corroborated by numerous instances in the record. The Board finds that the Veteran continued to experience the same symptoms from the end of his service to present day. The Veteran is competent to report he experienced symptoms of pain in his knee to include difficulty walking during the period of record. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A March 2017 VA examiner stated it was less likely than not the Veteran's left knee condition was related to service. The examiner explained that the Veteran's knee injury was likely due to a workplace injury he suffered in 2012, after which he underwent meniscal surgery. The examiner also noted the Veteran had normal X-rays in 2006 and X-rays in 2014 that showed degenerative joint disease. However, this examiner did not take into account the Veteran's lay statements that he has been in pain since his in-service injury. The VA examiner thus relied largely on an incomplete factual premise and the Board attributes no probative value to this opinion. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). (Continued on the next page) After review of the entire record, the Board finds the Veteran to be competent and credible concerning his left knee condition. The competent and credible evidence shows continuity of symptomology of his left knee condition since service. Entitlement to service connection for a left knee disability is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.