Citation Nr: 21076137 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-29 708 DATE: December 22, 2021 ORDER New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for left knee osteoarthritis and patellofemoral pain syndrome (claimed as Osgood Schlatter's disease and chondromalacia patella). New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear (claimed as Osgood Schlatter's disease and chondromalacia patella). Service connection for left knee Osgood Schlatter's disease also claimed as chondromalacia patella is granted. Service connection for right knee Osgood Schlatter's disease also claimed as chondromalacia patella is granted. FINDINGS OF FACT 1. By a July 1976 rating decision, the Veteran's claims of entitlement to service connection for bilateral knee conditions were denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the July 1976 rating decision and relates to unestablished facts necessary to substantiate the claims for service connection. 3. The evidence is at least evenly balanced as to whether the Veteran's current left knee osteoarthritis and patellofemoral pain syndrome began during active service. 4. The evidence is at least evenly balanced as to whether the Veteran's current right knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear. CONCLUSIONS OF LAW 1. The July 1976 decision denying service connection for bilateral knee conditions is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left knee condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for right knee condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee osteoarthritis and patellofemoral pain syndrome are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to May 1976. These matters come before the Board of Veterans' Appeals (Board) from a July 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2021 hearing and a transcript of the hearing is associated with his claims file. A rating decision of July 1976 denied entitlement to service connection for bilateral knee condition. The Veteran did not appeal the decision. In November 1993, the Veteran requested that his claim for service connection be reopened. In January 1994, the Board found that the Veteran's notice of disagreement was not timely filed. The Veteran appealed the decision which was denied in a December 1994 rating decision based on a lack of new and material evidence, which was confirmed in an October 1996 Board Decision. The Veteran filed to re-open the claim in February 2017. A rating decision of July 2017 denied entitlement to service connection for bilateral knee condition as the evidence submitted was not new and relevant. A rating decision of July 2017 denied entitlement to service connection for bilateral knee condition. The Veteran appealed. See NOD of September 2017 ; VA Form 9 of October 2019. The scope of the Veteran's claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Reopening A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Readjudication of entitlement to service connection for bilateral knee conditions In the July 1976 rating decision, the claims for service connection were denied based on the finding that the Veteran's bilateral knee conditions were not incurred in or caused by service. At the time of that decision the pertinent evidence of record included the Veteran's medical treatment records. The evidence received since the July 1976 rating decision includes medical treatment records, service treatment records, lay statements and VA examinations dated May 2017 and June 2017. This evidence is new and material as it pertains to whether the Veteran's bilateral knee conditions are related to his active-duty service, which is an unsubstantiated fact that is necessary to substantiate the claims. Therefore, the claims are reopened. Service personnel records reflect that the Veteran was discharged and released from active duty in May 1976, after less than 90 days, for "not meeting procurement medical fitness standards pursuant to Chapter 2, AR 40-501." The action followed a recommendation by Army Medical Board that the Veteran be administratively separated from Army service as the Veteran did not desire to continue on active duty. The Veteran's conditions at the time of the meeting included bilateral chondromalacia patella and Osgood-Schlatter's disease, both of which the Medical Board found were not service aggravated. The Medical Board noted that the Veteran was medically qualified for continuance on active duty, though his assignment limitations would include, "no crawling, stooping, jumping, marching or standing for long periods of time." The Veteran signed a statement dated April 19, 1976 notifying him that he had been found, upon examination, to have "a medical condition which would have permanently disqualified me for entry in the military service had it been detected." The Veteran admits that he was diagnosed with Osgood Schlatter's disease as a child. He contends that the Medical Board's decision to discharge the Veteran due to not meeting the physical requirements of service is evidence of a disease or injury having been incurred during active service. See Hearing Transcript. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has current bilateral knee disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of right knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis and patellofemoral pain syndrome, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. As an initial matter, the Board notes that the report of the Veteran's January 1976 entrance examination does not document any knee condition at the time of his entrance into service. On his January 1976 report of medical history, the Veteran indicated that his present health was "good" and did not allege any knee issues or conditions. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Notably, at the Veteran's April 1976 medical examination completed for the Army Medical Board, he included a statement that he "had a disease of the knees for a period of 4 to 5 years and they have gotten worse since I've been in PT, in the Army and other training, it has gotten worse since then." See Service Treatment Records. Upon discharge, the Medical Board noted the Veteran's Osgood-Schlatter's disease as an "old" condition and also found that the Veteran had bilateral chondromalacia patella. The Veteran on numerous occasions has contended or testified that his Osgood-Schlatter's disease predates his entry into service. There is no evidence of any pre-existing knee disability prior to service other than Osgood Schlatter's disease and the Veteran's January 1976 entrance examination did not otherwise identify any knee abnormalities. Therefore, the Board finds that the evidence is not clear and unmistakable that any knee disability other than Osgood Schlatter's disease pre-existed service and was not aggravated in service. Thus, with regard to the Veteran's knees, he is presumed sound at service entrance other than for Osgood Schlatter's disease. 38 U.S.C. § 1111. In this regard, the law and regulation relating to the presumption of soundness reflects that it applies to specific conditions and not more generally to a part of the anatomy. Medical records, including a May 2019 VA physician outpatient note and a September 2019 physician note, show the Veteran experiences bilateral knee pain, knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis. Thus, current bilateral knee disabilities have been demonstrated. Additionally, there is evidence of bilateral knee symptoms in service and evidence of continuous knee symptoms in the years since service. In this regard, service treatment records reflect that the Veteran's bilateral knees were treated in service, where the medical professional indicated the Veteran should not crawl, stoop, run, jump, march, or stand for long periods due to his knee condition in April 1976. An October 1976 orthopedics note demonstrates that the Veteran appeared for treatment for bilateral knee pain and soreness. Again, he appeared for treatment in January 1992, indicating that he was still experiencing pain in his knees and that he previously had Osgood-Schlatter's disease as a teenager. Although the Medical Board found the Veteran medically able to continue service, they noted that in active service he would be limited in range of activities, not being able to stoop, crawl, run, jump, march or stand for long periods of time due to his knee condition. Moreover, his post-service medical records and lay statements indicate that he has experienced continuous bilateral knee symptoms in the years since service. The Veteran is competent to report continuous bilateral knee symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that he has provided some information which is inconsistent with a continuity of symptomatology in the years since service. For instance, the Veteran's statement in his April 1976 medical examination completed for the Army Medical Board, he included a statement that he "had a disease of the knees for a period of 4 to 5 years and they have gotten worse since I've been in PT, in the army and other training, it has gotten worse since then." Then, in January 1981, the Veteran sought medical treatment for an examination for job clearance due to his left knee trouble as a child. See Medical Treatment Record. In January 1992, the Veteran presented for treatment noting that he went through vigorous survival training in November 1991, where he fell and then experienced knee locking and spasming. See Medical Treatment Records.. In subsequent reports the Veteran indicated that he had a diagnosis of Osgood-Schlatter's in childhood. He testified that when he was thirteen, he ran and his knee locked up. When he went to the doctor for treatment, they informed him that the condition would last for a maximum of one year. The Veteran was prescribed a cast for a week and noted that after three to four weeks, his condition completely disappeared. See April 2021 Board Hearing Testimony. As there is no other evidence that explicitly contradicts the Veteran's reports and his reports are otherwise generally consistent with the evidence of record and the circumstances of his service, the Board concludes that his reports of continuous bilateral knee symptoms in the years since service are credible. The nurse practitioner who conducted an April 2017 VA knee examination opined, in pertinent part, that the Veteran's bilateral knee disability was at least as likely as not incurred in or caused by service. She reasoned that according to records dated October 1976, the Veteran experienced knee pain and had tenderness of medial and lateral surfaces of knees. Records dated September 1976 indicate the Veteran had a medical history of Osgood Schlatter during childhood but was without knee pain upon entry in-service. Then, records dated January 1992, revealed knee pain & locking with tendonitis. As such, the examiner found that the Veteran's claimed bilateral knee condition noted as bilateral knee strain and left patellofemoral pain syndrome is at least as likely as not incurred in or caused by active duty service. The Veteran had a subsequent VA medical opinion completed in June 2017. The examiner found that the claimed condition Osgood Schlatter's disease of bilateral knees, clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by military service. He based this opinion on medical records especially the April 1976 record where the Veteran reported that he had been suffering from knee joint disease with pain for 4 to 5 years and that 1 month of service aggravated his knees which is unlikely since he was already suffering from knee pain by Osgood Schlatter's disease for years prior to service. The June 2017 opinion is of limited probative value because it is entirely based on one report from the Veteran and opined that it is unlikely that one month of service could have aggravated a knee condition as the Veteran was already experiencing knee pain without providing any further rationale. The opinion does not take into account the Veteran's continued treatment or competent reports of for bilateral knee symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the opinion fails to consider the Veteran's previous positive nexus opinion. The Veteran's orthopedic doctor submitted a private opinion in September 2019 that notes that the Veteran's MRI was positive for early arthritis changes, arthritis in the knee with synovitis, and that there is no current evidence of Osgood-Schlatter disease. The clinician opined that it was his medical opinion that the Veteran's Osgood-Schlatter did not contribute to the osteoarthritis in his knee. In sum, the evidence reflects that the Veteran experienced bilateral knee symptoms in service and that there have been continuous bilateral knee symptoms in the years since service. The record includes a private opinion that the Veteran's Osgood-Schlatter disease does not contribute to his current osteoarthritis in his knees and that there is presently no indication of Osgood-Schlatter disease in his MRI. Additionally, a VA opinion notes that the Veteran did not have knee pain upon entry to service, but shortly thereafter did experience knee pain with locking. There is no adequate medical opinion that is contrary to a conclusion that the current knee disabilities had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right knee osteoarthritis with mild crepitus, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis and patellofemoral pain syndrome is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.