Citation Nr: 21076116 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-66 445 DATE: December 22, 2021 ORDER The application to reopen the claim of service connection for a right knee disability is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. An unappealed May 2013 rating decision denied service connection for a right knee disability essentially on the basis that that the Veteran's right knee disability was not caused by service. 2. Evidence received since the May 2013 rating decision include a July 2021 private opinion from a chiropractor relating the Veteran's knee disability to service. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability; and raises a reasonable possibility of substantiating the claim. 3. There is a relative equal balance of competent and credible evidence for and against whether the Veteran's right knee disability began in service and has progressed since that time. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a right knee disability may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from May 1977 to April 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision. In August 2021 a video conference hearing was held before the undersigned; a transcript is in the record. 1. Reopen the claim of service connection for a right knee disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "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). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a right knee disability was previously denied by an unappealed May 2013 rating decision on the basis that the Veteran's right knee disability was not caused by service. See May 2013 Notification Letter. The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. Accordingly, new and material evidence to reopen the claim is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. For evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material, it would have to tend to show that the Veteran's right knee disability may be etiologically related to his service. Evidence added since the May 2013 rating decision includes July 2021 correspondence from a private chiropractor who opined that the Veteran's right knee disability was caused by a fall in service. This evidence constitutes new evidence that pertains to a previously unestablished fact necessary to substantiate the claim of service connection for a right knee disability; considering the "low threshold" standard for reopening endorsed by the Court in Shade, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received, and that the claim of service connection for a right knee disability may be reopened. 2. Entitlement to service connection for a right knee disability. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A November 1980 service treatment record (STR) notes the Veteran was seen after twisting his right knee while carrying a box weighing 70-80 pounds up a ladder. The Veteran reported he heard a pop. Knee examination showed intact collateral ligaments without laxity. The cruciate ligament was within normal limits. No point tenderness. Edema was noted medially and in the patella area. The assessment was a medial muscle strain of the right knee. The Veteran was instructed to apply heat, elevate, not run for two weeks; he was provided pain medication and returned to duty. On April 1981 report of medical history, the Veteran denied a history of swollen or painful joints and tricked or locked knee. On April 1981 report of medical examination, the Veteran's lower extremities were normal on clinical evaluation. An October 2005 treatment record notes the Veteran was seen for left foot pain. No complaints of knee pain were reported. The Veteran reported using a stepper machine at home. An August 2006 treatment record notes the Veteran was seen for complaints of right knee pain which he reported starting one week prior after rolling in bed. No trauma or falls were reported. A January 2007 treatment record notes the Veteran was seen for a routine follow up for right knee pain. A February 2008 treatment record notes the Veteran was seen for right knee pain occurring for the past two years with flares occurring from time to time. The Veteran reported no trauma or falls and reported taking Naprosyn as needed. DJD was suspected. The Veteran was referred to be fitted for a brace, and for pt for strengthening exercises, and instructed to continue pain medication as he had reported. A February 2008 right knee X-Ray showed probable medial joint compartment cartilaginous degeneration of the right knee. On November 2009 joints examination, the Veteran was seen with right knee pain. The Veteran reported an in-service injury when carrying a heavy box and heard a popping sound. He reported experiencing intermittent pain since that time. The clinician opined that the Veteran's right knee DJD was not related to service. The clinician noted the Veteran was seen for a knee strain in service, and that his separation physical was negative for any knee complaints or findings. The clinician noted the most report of post-service knee injury occurred in 2006 when the Veteran reported symptoms began one week prior. The examiner noted that at that time he was exercising using weights and a step machine. A May 2010 X-Ray showed severe osteoarthritis of the medial compartment with bone-on-bone contact of the medial compartment. At a June 2010 orthopedic consultation, the Veteran reported right knee pain for six months with the use of a cane for three months. A September 2012 surgery history and physical notes the Veteran was seen for right knee pain present for several years. It was noted that the Veteran was shown to have severe osteoarthritis of the right knee. He was scheduled for a right TKA. An October 2012 treatment record notes the Veteran was seen six days weekly for physical therapy. A March 2013 treatment record notes the Veteran was seen following a right TKA. It was noted that the Veteran had completed physical therapy and was doing better overall. An October 2015 private examination notes the Veteran was seen with complaints of right knee pain. The Veteran reported he was injured in November 1980 and has experienced knee pain since then. It was noted that the Veteran underwent a right TKA in October 2012. An October 2015 right knee X-Ray showed hardware in alignment. In July 2021 correspondence, a private chiropractor opined that the Veteran's right knee disability was related to his injury in service. The chiropractor noted reading the Veteran's treatment records and VA records. The chiropractor noted the Veteran reported injuring his right knee in 1980. The chiropractor stated no treatment was given at the time of injury in service and stated there was pain along the medial side of the knee with swelling around the patella. At the August 2021 video conference hearing, the Veteran testified that he injured his right knee in service falling down some stairs while carry 70 pounds of meat. He stated he was given pain medication and two weeks relief of duty asa a mess management specialist. He stated that his knee bothered him some when he returned to duty but that it got progressively worse as time went on. The Veteran's wife testified that the Veteran returned from service with a limp. She also testified that to her knowledge the Veteran had not experienced a knee injury since service. It is not in dispute that the Veteran had a right knee injury in service. It is also not in dispute that the Veteran has a current right knee disability (for which he underwent a right TKA in 2012). What remains necessary to determine is whether the Veteran's current right knee disability is related to his in-service injury. The record contains conflicting evidence in the matter. Against the Veteran's claim is that his knee was shown to be normal on clinical evaluation at separation, he did not report knee disabilities at separation, and did not seek treatment for a right knee disability until 2006 (approximately 25 years after service) and during the initial treatment encounters, he referred to recent onset of pain and not to an on-going problem since service. The November 2009 medical opinion is against the Veteran's claim. The clinician noted that the Veteran reported experiencing intermittent right knee pain since service. However, when providing an opinion, the clinician noted only that the Veteran did not seek treatment for his right knee until 2006. As the clinician failed to adequately consider the Veteran's lay statements, the Board finds such opinion to be inadequate. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923 In support of the Veteran's claim is his testimony and statements of experiencing intermittent progressing pain since service, and a July 2021 opinion by a private chiropractor. The Veteran's testimony is that he has experienced intermittent right knee pain since service, and that such intermittent periods of pain have gotten progressively worse over time. This testimony clarifies why despite having testified to experiencing pain in the right knee since service the Veteran did not report knee trouble at service separation and had not sought treatment for right knee pain until 2006. The July 2021 private opinion notes the progression of the Veteran's knee disability since service and provides rationale for the delay in the Veteran seeking medical treatment for his right knee disability. Considering the foregoing and resolving reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 3.102), the Board finds that there is a relative equal balance of evidence for and against that the right knee disability was caused by a fall in service with intermittent pain since that time. Accordingly, service connection for a right knee disability is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.