Citation Nr: 21076149 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-14 000 DATE: December 22, 2021 ORDER The application to reopen the finally disallowed claim of service connection for a left knee disability is granted. Entitlement to service connection for a left knee disability is granted. FINDINGS OF FACT 1. In the April 2010 rating decision, the Regional Office (RO) denied service connection for a left knee disability; the Veteran did not perfect a timely appeal of the decision, which then became final. 2. New evidence received since the April 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt, the Veteran's left knee disability onset during his active duty. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied service connection for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence was received sufficient to reopen the claim for service connection for left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to September 1984. This appeal to the Board of Veteran's Appeals (Board) arose from a December 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this appeal for further development. New & Material Evidence Left Knee Disability Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. In the April 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a left knee disability. The AOJ notified the Veteran of the decision and of his appellate rights in a letter dated April 2010. The Veteran did not initiate an appeal by filing a NOD, or submit new and material evidence within one year of the notification of the April 2010 rating decision. Thus, the April 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In September 2016, the Veteran filed a request to reopen the finally disallowed claim of service connection for a left knee disability. In the December 2016 rating decision, the AOJ denied the claim, due to the absence of new and material evidence sufficient to reopen the claim. Notwithstanding the AOJ's actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claim of service connection for a left knee disability. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). "New" evidence is evidence not previously submitted or considered by the agency decision makers. "Material" evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. §3.156(a). The relevant evidence considered at the time of the April 2010 rating decision consisted of service treatment records, Eglin Air Force Base (AFB) hospital records, and a March 2010 VA Examination Report. In denying the claim, the AOJ stated that, although the Veteran reportedly experienced swollen knees in service, other evidence shows that his current degenerative changes were unrelated to his in-service condition. The March 2010 VA examiner acknowledged the in-service notation regarding swollen knees, but stated that there were no radiological findings of arthritis during service. The examiner noted that the Veteran was seen after service in 2001 for left knee pain after purportedly injuring this joint while coaching a soccer team six months ago. New and material evidence necessary to reopen this previously denied claim would consist of evidence addressing a nexus between the Veteran's current left knee condition and his service. In this regard, the Board notes that evidence received after the April 2010 rating decision consists of March 2017 VA examination report, the Veteran's lay statements, and duplicate service treatment records. As previously discussed herein, service treatment records were associated with the claims file and considered at the time of the April 2010 rating decision. Therefore, this evidence is cumulative and redundant of the evidence considered at the time of April 2010 denial. After a thorough review of the other evidence, the Board finds that the remaining additional evidence is new, as it was not considered at the time of the April 2010 rating decision. The evidence is also material, as it relates to an unestablished fact. Specifically, the March 2017 examination report and the Veteran's lay statements provide further information that speaks towards the origin of his left knee condition, as will be explained further herein. Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The newly submitted evidence, taken together with the evidence of the prior record, does, in fact, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As new and material evidence has been received since the April 2010 rating decision, the application to reopen the previously denied claim for service connection for a left knee disability is granted. Service Connection Left Knee Disability The Veteran seeks service connection for a left knee disability. He is currently diagnosed with degenerative joint disease of his left knee. 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may 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). Service treatment records document multiple complaints regarding bilateral knee pain. The first notation regarding knee pain was recorded in November 1973. In February 1980, the Veteran complained of increased left knee pain secondary to dropping from horizontal bars. On the September 1987 Report of Medical History, he reported intermittent swelling of his knees after increased activity. On the May 1993 Report of Medical History (Separation), he reported swollen knee joints since 1974 and "arthritis" in his knees. Further, the March 2010 VA examiner provided a negative nexus opinion, stating that the in-service medical records did not indicate radiological findings of arthritis. The examiner referenced post-service medical records showing that, in 2001, the Veteran reported injuring his left knee while coaching a soccer team. In March 2017, another negative nexus opinion was provided by the VA examiner. The examiner explained that service medical records show no objective documentation to support left knee disorder while in service, to include no active complaints, abnormal findings on physical examinations or treatment for the left knee throughout his service. He did have right knee disorder for which he was seen, evaluated, and treated. The examiner addressed the May 1993 Separation Report of Medical History, in which the Veteran provided a personal history of arthritis of both knees. The examiner stated that it was not confirmed by any abnormal examination or diagnosis regarding left knee. The examiner noted that information simply recorded by a medical examiner without additional medical comment does not constitute competent medical evidenceand that medical literature shows that advanced age is one of the strongest risk factors associated with osteoarthritis. The Board has also reviewed the post-service medical records discussed in the examination reports. In 2001, the Veteran complained of left knee painand that, six months earlier, he had injured it while coaching a soccer team. He denied distinct trauma since that initial twisting of the knee six months prior. In May 2001, he complained of hearing popping noise in his left knee three months prior to the visit. He denied any injury. In November 2001, he complained of increased left knee pain with any weight-bearing activity. He denied any recent trauma to the knee. See October 2016 Medical Treatment Record Government Facility. After a thorough consideration of the evidence of the record, in its totality, the Board finds that the evidence raises a reasonable doubt as to the initial onset of the Veteran's left knee condition. The Board acknowledges the negative nexus opinions provided by the VA examiners. The March 2017 VA examiner opined that there were no active complaints regarding the Veteran's left knee during his service. However, the service treatment records document complaints regarding the Veteran's left knee. When separating from service, the Veteran reported having swollen knees and "arthritis." He complained multiple times regarding left knee pain when performing increased or weight bearing activity. Post-service medical records show complaints based on similar activities. In this matter, the Board observes that the Veteran's accounts of his symptoms during and after service, when considered in tandem with the symptoms and diagnosis identified in the treatment records and VA examinations, nonetheless, raise a reasonable doubt as to the initial onset of his left knee condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his left knee condition is related to his in service complaints. 38 C.F.R. § 3.303(d) (which stipulates that service connection may be granted for any disease diagnosed after discharge). Accordingly, the Board determines that the criteria for service connection for a left knee disability have been met. Entitlement to service connection for this disability is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.