Citation Nr: 21075965 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-20 613 DATE: December 22, 2021 ORDER The application to reopen the claim for service connection for Osgood-Schlatter's disease of the right knee is denied. REMANDED Service connection for a right knee disability, other than Osgood-Schlatter's disease or residuals thereof, is remanded. FINDINGS OF FACT 1. In an April 2015 rating decision, the Department of Veterans Affairs Regional Office denied service connection for Osgood-Schlatter's disease of the right knee. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to Osgood-Schlatter's disease of the right knee received after the last final rating decision of April 2015 does not relate to an unestablished fact necessary to substantiate the claim for service connection; it is cumulative of the evidence already of record. CONCLUSIONS OF LAW 1. The April 2015 rating decision denying the claim for service connection for Osgood-Schlatter's disease of the right knee is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. Evidence received since the April 2015 rating decision is not new and material, and the claim for service connection for Osgood-Schlatter's disease of the right knee is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to March 1979 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. The electronic filing system contains records that were associated with the file by VA, rather than the Veteran, since the last readjudication of the claims without a waiver of initial review by the VA Regional Office. However, as the records are duplicative of those already received or are otherwise not pertinent to the claim adjudicated below, there is no risk of prejudice to the Veteran from proceeding without the waiver. As a matter of clarification regarding the characterization of the claims, while the appeal has been developed as a claim involving Osgood-Schlatter's disease only, the Board will more broadly consider the Veteran's entitlement to benefits for any right knee disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 8 (2009). Here, as the evidence implicates distinct diagnoses pertaining to the right knee requiring different legal analyses, the claims have been bifurcated as depicted above. The application to reopen the claim for service connection for Osgood-Schlatter's disease of the right knee is denied. Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 C.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 (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 (2000). In deciding whether new and material evidence has been received, 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 "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). With regard to the law pertaining to the merits of the claim for Osgood-Schlatter's disease of the right knee, VA provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). VA must show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. If a disability was not noted at the time of entry into service and VA fails to establish by clear and unmistakable evidence either that the disability existed prior to service or that it was not aggravated by service, the presumption of sound condition will govern and the disability will be considered to have been incurred in service if all other requirements for service connection are established. Here, service connection for Osgood-Schlatter's disease was first denied by the VA Regional Office in a June 1979 rating decision. The Veteran appealed that determination, and in a January 1981 decision, the Board denied the claim. Subsequently, the VA Regional Office continued denials of the claim in August 2002, January 2012, and October 2014. In these determinations, the VA Regional Office and Board determined that the Veteran's Osgood-Schlatter's disease of the right knee preexisted military service and was not aggravated by service. While not noted on entry, subsequent service treatment records were replete with findings of Osgood-Schlatter's disease that preexisted service. In March 1979 Medical Board proceedings, x-rays showed changes in the tibial tubercle compatible with Osgood-Schlatter's disease. The Medical Board determined that the Osgood Schlatter's disease preexisted military service had not been aggravated by service, and the Veteran's discharge ensued. In an April 2015 rating decision, the VA Regional Office reopened the claim but continued the previous denials. The evidence of record consisted of statements from the Veteran, his service treatment records, VA treatment records, and private medical records. The VA Regional Office denied the claim due to a lack of evidence showing that Osgood-Schlatter's disease of the right knee was aggravated by service. There was no material evidence received within one year of the issuance of the April 2015 rating decision. The Veteran was notified of the decision and of his appellate rights but did not appeal. The April 2015 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. Evidence received since the last final April 2015 rating decision includes statements from the Veteran, hearing testimony, VA treatment records, private medical records, and duplicative service records. The claim was previously denied due to a lack of probative evidence showing that the preexisting Osgood Schlatter's disease of the right knee increased in severity during military service or was aggravated by service. The evidence received since April 2015 does not raise any reasonable possibility of substantiating matter. While the Veteran has submitted several private medical opinions of Dr. M., as discussed in the remand below, these pertain to his current degenerative joint disease of the right knee, not Osgood-Schlatter's disease. In her reports, Dr. M. offered no opinion or findings on whether the preexisting Osgood Schlatter's disease of the right knee increased in severity during military service or was aggravated by service. The Veteran's statements, including his August 2021 hearing testimony, have also been carefully considered. While admissible and presumed believable pursuant to Justus, a comparison of the lay statements made prior to and since April 2015 indicates that the current statements are repetitive, redundant, and duplicative of those of record at the time of the April 2015 rating decision. See Justus, 3 Vet. App. at 512-513. The prior evidentiary defect has not been cured, nor has it triggered VA's duty to provide further assistance. The evidence is cumulative and redundant of that already of record when the claim was last denied by the VA Regional Office in April 2015. The additional evidence received since the April 2015 rating decision does not relate to an unestablished fact necessary to substantiate the claim for Osgood-Schlatter's disease of the right knee, nor does it raise a reasonable possibility of substantiating the claim. The benefit-of-the-doubt doctrine is not for application and the claim for service connection is not reopened. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND Service connection for a right knee disability, other than Osgood-Schlatter's disease or residuals thereof, is remanded. The Veteran has current degenerative joint disease of the right knee, documented, for example, in a December 2019 VA treatment record. He reports that he injured his right knee during a fall down a staircase in service. See, e.g., Hearing Testimony p.3. A February 1979 service treatment record indeed documents that he fell on his ship and struck his knee. He had pain over the patella bursa region and swelling over the tibial tubercle. X-rays were negative for a fracture. In a February 2015 letter, the Veteran's private physician, Dr. M., opined that his current knee pain is related to service as he never had knee pain prior to the 1979 fall. In a July 2015 letter, Dr. M. opined that the current arthritis of the knee was initiated at the time of his 1979 fall. She stated that the Veteran had not experienced a knee injury prior to or since the fall. In reaching these opinions, however, it does not appear that Dr. M. was informed by a review of the Veteran's service treatment records documenting the fall and his condition prior to and subsequent to the incident. Additionally, she did not address post-service accidents, including a 2011 motor vehicle accident or a 2012 slip and fall accident. Nonetheless, the reports of Dr. M. indicate that the current right knee disability, other than Osgood-Schlatter's disease or residuals thereof, may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A VA medical opinion has not yet been afforded and must be provided prior to appellate adjudication. The matter is REMANDED for the following action: Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his right knee disability, other than Osgood-Schlatter's disease or residuals thereof. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. Opine on whether it is at least as likely as not that the current right knee disability, other than Osgood-Schlatter's disease or residuals thereof, was incurred during active service or is related to an in-service injury, event, or disease. In doing so, please consider the following: February 1979 service treatment record documenting that the Veteran fell on his ship and struck his knee. He had pain over the patella bursa region and swelling over the tibial tubercle. X-rays were negative for a fracture. February 2015 and July 2015 reports of Dr. M. attributing the Veteran's current arthritis of the right knee to the 1979 fall Post-service treatment records noting a 2011 motor vehicle accident and a 2012 slip and fall accident M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.