Citation Nr: 21006862 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-40 035 DATE: February 5, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a left knee disability is reopened. Service connection for a left knee disability is granted. FINDINGS OF FACT 1. The evidence received since the November 2014 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claim for service connection for a left knee disorder. 2. The Veteran’s left knee disorder is as likely as not caused by his service-connected right knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to April 2004. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “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 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). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In unappealed May 2004 rating decision, the RO denied service connection for a left knee disability because there was no evidence of a diagnosed disorder. In a rating decision in November 2014, the RO declined to reopen the claim for service connection for a left knee disability secondary to the right knee disorder finding that new and material evidence had not been received to reopen the claim. The Veteran was notified of the rating decision, but did not appeal it. As such, the November 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records that documented complaints of right and left knee pain; a February 2004 VA examination report which did not reflect a diagnosis or treatment for a left knee disability; an August 2014 VA examination report wherein the examiner found no link between his left knee disability and service or his service connected right knee condition; VA treatment records, and; statements from the Veteran asserting that he developed a left knee disorder as a result of his service connected right knee problem. The evidence received since the November 2014 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The medical evidence reflects diagnoses and treatment for a left knee disability. Additionally, in April 2016 and September 2019 medical statements, wherein private clinicians opined that the Veteran’s left knee disability was secondary to the right knee disability. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. 2. Entitlement to service connection for a left knee disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient 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. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for a left knee disability. He contends that as a result of the service-connected right knee disability he developed an altered gait which caused him to develop a left knee disability. The service treatment records show complaints of left knee pain in 1986 and 1987. A September 1986 clinical treatment note showed that examination of the knee was within normal limits except for a finding of crepitus. On separation from service in February 2004, the Veteran complained of bilateral knee pain. On VA examination in February 2004, the Veteran complained of pain in both knees. Reportedly, the left knee had become painful in recent years. He denied a history of trauma. The examiner noted no pathological process in the left knee and a diagnosis was not rendered. Treatment records after 2013 noted complaints of left knee pain and popping, along with findings of degenerative changes in the knee. The records reflect that the Veteran’s gait was abnormal, a slight limp to the right was noted, and he used a cane for ambulation. In November 2013, he was instructed on how to use the cane to offload the right knee. It was further noted that the Veteran was obese, and he walked with his legs abducted, which probably put abnormal stress on both knees. Private treatment records also documented an antalgic/unsteady gait. On VA examination in August 2014, the Veteran stated he had pain on the left knee since active service. X-rays in May 2014 revealed minimal early degenerative joint disease. The examiner opined that it was less likely as not that the Veteran’s left knee condition was caused by or related to active service because while the service treatment records documented isolated complaints of left knee pain, a chronic left knee condition was not noted, nor was one found on VA examination in February 2004. The examiner further opined that the left knee condition was less likely as not caused by or related to his right knee disability. The examiner attributed the knee disorder to the Veteran’s obesity, weighing over 325 pounds on a 5'8 body frame. This extreme weight put extra pressure in the knees thereby contributing to the initiation of degenerative joint disease. Although it seemed reasonable that knee pain would favor increased use of the contralateral leg, it also caused less wear and tear due to decreased physical exertion. The examiner cited to the medical literature and noted that a retrospective study of 170 patients analyzing a diseased knee and the contralateral knee in 2004, concluded that the rate for degenerative joint disease in the normal knee was the same rate for the hand which was not affected by an association with a diseased counterpart. In a statement in April 2016, the Veteran’s private treating physician indicated that Veteran over-relied on the left knee due to the right knee disability, which resulted in torn meniscus. Therefore, the Veteran’s recurrent episodes of swelling and acute arthritic/traumatic episodes to his left knee. The physician opined that the Veteran’s left knee was aggravated by his minimally functional and painful right knee which caused excess wear and tear on the left knee. A VA examiner in June 2016, noted that knee arthritis was typically caused by the microtrauma from the wear and tear of everyday lives. There were specific risk factors including age, knee injury and obesity which was well documented and significantly increased with BMI > 30. Review of the medical literature for evidence regarding whether knee arthritis in one knee could cause arthritis by causing the person to over-rely on the other knee was less clear. Studies failed to find an association of causation or of increased risk. It had been suggested that force borne by the opposite knee could be increased if there was over a prolonged period of time, a major displacement of the center of gravity of the body mass during gait, or with a significant leg length discrepancy. The examiner indicated that a review of the Veteran’s medical records failed to show that either condition was present. Therefore, given the specific risk factors of the Veteran, it was less likely than not that the Veteran’s left knee condition was secondary to his service-connected right knee disability. In a statement in September 2019, the Veteran’s private treating clinician noted that due to the right knee disability, the Veteran had relied on the left knee for support, thereby injuring the left knee resulting in his current left knee disability. Following a review of the evidence, including the April 2016 and September 2019 private medical opinion reports, it appears reasonable to conclude that at least some portion of a current left knee disorder could be related to service connected right knee disability. The Board has the responsibility to determine the weight to be given to the evidence of record, and may favor one medical opinion over another. Cathell v. Brown, 8 Vet. App. 539, 543 (1996). The probative value of an opinion depends upon whether it is based on an acute history; is definitive and is supported by an adequate rationale. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here the private clinicians’ opinions reflect consideration of the Veteran’s pertinent clinical history which is consistent with the evidence of record. The treating physician essentially opined that the right knee disability aggravated the left knee condition due to his altered gait. In contrast, the VA examiners failed to address aggravation in the context of secondary service connection. Moreover, while the VA examiner in 2016 based, in pertinent part, the negative nexus opinion on the finding that a review of the medical evidence failed to show that the Veteran’s right knee caused him to alter his gait and injure the left knee because that risk factor was not present, VA and private treatment records during the pendency of the claim intermittently documented an altered/antalgic gait, favoring the right knee. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. As such, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the left knee disorder as secondary to service connected right knee disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.