Citation Nr: 21076714 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-44 530 DATE: December 27, 2021 ORDER The application to reopen the claim for service connection for right knee patellofemoral pain syndrome (claimed as bilateral knees) is granted. The application to reopen the claim for service connection for left knee patellofemoral pain syndrome (claimed as bilateral knees) is granted. Service connection for right knee degenerative arthritis (right knee disability) is granted. Service connection for left knee degenerative arthritis (left knee disability) is granted. FINDINGS OF FACT 1. In an unappealed January 2004 rating decision, the RO denied the Veteran's claim of service connection for right knee patellofemoral pain syndrome (claimed as bilateral knees). 2. The evidence received since the January 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for right knee patellofemoral pain syndrome (claimed as bilateral knees). 3. In an unappealed January 2004 rating decision, the RO denied the Veteran's claim of service connection for left knee patellofemoral pain syndrome (claimed as bilateral knees). 4. The evidence received since the January 2004 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for left knee patellofemoral pain syndrome (claimed as bilateral knees). 5. The Veteran's right knee disability had its onset in service and has continued since. 6. The Veteran's left knee disability had its onset in service and has continued since. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied service connection for right knee patellofemoral pain syndrome (claimed as bilateral knees) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. Since the January 2004 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for right knee patellofemoral pain syndrome (claimed as bilateral knees); therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The January 2004 rating decision that denied service connection for left knee patellofemoral pain syndrome (claimed as bilateral knees) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 4. Since the January 2004 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for left knee patellofemoral pain syndrome (claimed as bilateral knees); therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5107(b); 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 from August 1997 to November 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 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 will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing 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 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. Anglin v. West, 203 F.3d 1343, 1347 (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." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability. The RO denied service connection for right and left knee patellofemoral pain syndrome (claimed as bilateral knees) in a January 2004 rating decision on the basis that there was no evidence of a permanent or chronic disability and therefore no evidence of a relationship between a current disability and service. The Veteran did not file a timely notice of disagreement as to the January 2004 rating decision and new and material evidence was not associated with the claims folder within one year of issuance of the rating decision. The January 2004 rating decision is therefore final. At the time of the final rating decision in January 2004, the record included the Veteran's service treatment records, post-service treatment records, and a VA joints examination report dated in October 2003. Service treatment records document treatment for the Veteran's knee pain on several occasions. In particular, he was treated in August 1998 for left knee pain for the past eight days and assessed with a sprain. He complained of bilateral knee pain in April 1999 and was assessed with bilateral patellofemoral pain syndrome. He was subsequently treated for knee pain in July 1999, November 1999, and September 2000. He also reported "trick" or locked knee on his September 2001 report of medical history in conjunction with his separation examination. A postservice VA treatment record dated in June 2003 documented a finding of degenerative joint disease of the knees. An October 2003 VA examination documented the Veteran's report of bilateral knee pain but only noted a finding of bilateral genu recurvatum with bilateral patellar tracking defect. In August 2015, the Veteran submitted a claim to reopen his previously denied claims of entitlement to service connection for the right and left knee disabilities. In reviewing the evidence added to the claims folder since the January 2004 final denial, new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for the right and left knee disabilities. In particular, in a June 2017 report, a VA examiner documented findings of right and left knee degenerative arthritis and further noted the Veteran's report of a continuity of bilateral knee symptomatology since separation from service. Notably, the Veteran's previous claims were denied because there was no evidence of a chronic right or left knee disability and thereby no evidence of a nexus between a current disability and service. The new evidence thus relates to an unestablished fact necessary to substantiate the claims. The credibility of the newly submitted evidence is presumed in determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Accordingly, the additional evidence is also material. As new and material evidence has been received since the prior final January 2004 denial, the claims of service connection for right and left knee patellofemoral syndrome (claimed as bilateral knees) are reopened. Service Connection 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 (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). For certain chronic disease, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 1. Service connection for a right knee disability. 2. Service connection for a left knee disability. The Veteran contends that he has right and left knee disabilities that are related to his military service and that he has had right and left knee pain in and since service. For the following reasons, service connection for right and left knee disabilities is warranted. The medical evidence shows that the Veteran has current right and left knee degenerative arthritis. See VA examination report (June 2017). He was first diagnosed as having right and left knee degenerative arthritis in June 2003. See VA treatment report (June 2003). Therefore, the current disability element has been established. As to the in-service disease or injury element, the Veteran's service treatment records document a complaint of bilateral knee pain in April 1999 and he was assessed with bilateral patellofemoral pain syndrome. He was subsequently treated for knee pain in July 1999, November 1999, and September 2000. He also reported "trick" or locked knee on his September 2001 report of medical history in conjunction with his separation examination. Therefore, the in-service disease or injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran's right and left knee degenerative arthritis had its onset during his service or is related to his military service. See 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). The Veteran was afforded a VA knee examination in June 2017. During the VA examination, the Veteran reported that he had bilateral knee pain in and since service. The VA examiner opined that the Veteran's right and left knee degenerative arthritis were less likely than not related to his military service. The VA examiner reasoned that the Veteran's current degenerative arthritis of the knees are related to age, normal wear and tear on weight bearing joints, and the negative impact of tobacco use as the Veteran was a one pack per day smoker for the past 19 years. The examiner also reasoned that an October 2003 VA examination which noted X-ray findings of "narrowing of the medial aspect of the left and right knee joint space" and found that the Veteran was 28 years old at the time of that examination and the X-ray finding was not unusual for a 28 year old. The Board finds that the June 2017 VA opinion is afforded no probative value, as the examiner failed to consider and address the Veteran's reports of bilateral knee pain in and since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran has asserted that he has experienced bilateral knee pain in and since service. Importantly, the Veteran, as a lay person, is competent to report bilateral knee pain in and since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). His statements, regarding experiencing bilateral knee pain in and since service are credible and consistent with the evidence of record. For instance, one year and half after the Veteran separated from service, he submitted a claim of service connection for right and left knee disabilities. See Veteran's claim (May 2003). In the Veteran's May 2003 claim of service connection for right and left knee disabilities, he indicated that the onset of his knee pain/disability had its onset during his military service in 2001. During the June 2017 VA examination, the Veteran continued to report that he had right and left knee pain in and since service. As such, the Veteran has provided consistent statements indicating that he began experiencing bilateral knee pain in and since service. Moreover, there is no evidence to explicitly contradict his reports. In sum, the evidence shows that in the Veteran's September 2001 separation report, he reported trick" or locked knee. Within one year and half after the Veteran separated from service, he submitted a claim of service connection for right and left knee disabilities. He was diagnosed as having right and left knee degenerative arthritis within one year and half after his separation from service. Accordingly, the competent and credible lay evidence of record establishes that the Veteran had bilateral knee pain in service and that his bilateral knee pain has been ongoing since service. The evidence is therefore at least evenly balanced as to whether the Veteran's right and left knee disabilities had their onset in service. Therefore, service connection for right and left knee disabilities is granted. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.