Citation Nr: 21010497 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-50 747 DATE: February 25, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for left knee disability is reopened. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, is granted. FINDINGS OF FACT 1. The claim for service connection for left knee condition was denied in a May 2010 rating decision. No new evidence was submitted within a year, and Veteran did not perfect appeal. The May 2010 rating decision is final. 2. Evidence submitted since the May 2010 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection left knee disability, and therefore creates a reasonable possibility of substantiating the claim. 3. After resolving reasonable doubt in the Veteran’s favor, the diagnosed left knee disability has been shown to be etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The May 2010 rating decision that denied entitlement to service connection for left knee condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the May 2010 rating decision and the requirements to reopen the claim for entitlement to service connection for left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1977 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a videoconference hearing before the undersigned. The transcript of the hearing has been associated with the claims file. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (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 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. In January 2010, the Veteran filed a service connection claim for left knee disorder secondary to his service-connected right knee disability. That claim was denied in a May 2010 rating decision. The claim was denied because the evidence did not show that his left knee was related to his service or to a service-connected disability. The Veteran filed a timely notice of disagreement (NOD) in March 2011 and was issued a statement of the case (SOC) in September 2011; however, the Veteran never perfected his appeal and the May 2010 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Veteran filed to reopen his claim in March 2015. In support of his claim, the Veteran submitted new and material evidence; namely, a June 2019 private opinion from Dr. E. Cohen that links his left knee disability to his service-connected right knee disability. The Board finds the evidence added to the claims file since the May 2010 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for left knee disability. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. Service Connection Service connection requires a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for left knee disability, to include as secondary to right knee disability, is granted. At the outset, the Board notes that the Veteran has been diagnosed with chondromalacia patellae (kneecap cartilage deterioration and softening) of both knees, with degenerative changes to medial meniscus (interior knee cartilage) and anterior cruciate ligament (ACL) of the left knee. See May 2010 Medical Treatment Record - Government Facility, pages 11, 13. As such, the first element of service connection is met. The Board observes that the Veteran is currently service connected for a right knee disability. See June 2015 Rating Decision – Codesheet. It remains for the Board to determine if the evidence shows that this right knee disability caused or aggravated the Veteran’s left knee disability. The Veteran testified during his October 2020 hearing that his service-connected right knee injury caused his left knee to overcompensate, leading to the left knee’s deterioration. He also related a specific incident in which his service-connected right knee gave out while he was moving a couch, causing him to drop the couch onto his left knee. See October 2020 Hearing Transcript. The Veteran’s service treatment records are silent as to left knee conditions. Turning to the Veteran’s post-service medical records, VA x-rays from August 1997 showed mild tibial peaking in the left knee, as well as a possible small calcification projecting in the soft tissues of the calf. No signs of fracture or dislocation were detected. See August 1997 Medical Treatment Record - Government Facility. During a February 2010 VA orthopedic surgery consult, the Veteran reported that he had dropped a couch on his left knee in March 2008 after his right knee gave out. The Veteran said that since then, both knees have bothered him. The physician assessed that the Veteran had chondromalacia patellae (kneecap cartilage deterioration and softening) of both knees, with degenerative changes to medial meniscus (interior knee cartilage) and anterior cruciate ligament (ACL) of the left knee. See May 2010 Medical Treatment Record - Government Facility, pages 11, 13. At a December 2013 VA orthopedic surgery consult, the Veteran presented with new left knee pain following a hyperextension injury. The Veteran reported that the injury occurred when he was fell off a ladder in November 2013 and landed while hyperextending his left knee. X-rays were obtained and reviewed and showed large knee effusion and mild medial compartment degenerative changes; however, no evidence of acute fracture or dislocation. A flexion test revealed decreased range of motion but was negative for ACL tear. See April 2015 CAPRI, pages 83, 84, 87. During a March 2015 VA routine future examination (RFE) for the Veteran’s service-connected right knee, left-knee radiographs from April 2008 and December 2013 were reviewed. These revealed degenerative changes and bone bruising, as well as tears of the inter-joint cartilage and ACL; however, the examiner noted that the later images showed much less bone bruising. See April 2015 CAPRI, page 18. The Veteran was afforded a VA examination in May 2015. After an in-person exam and a review of the Veteran’s file, the examiner opined that the Veteran’s left knee condition was less likely than not proximately due to or related to the Veteran’s service. The examiner reasoned that, although the Veteran endorsed injuring his left knee in 2014 when his right knee flared up while climbing a ladder, an MRI performed at the time indicated little change since a previous MRI of the left knee. In fact, the MRI taken after the ladder fall indicated less bone bruising than seen in the previous MRI. The examiner also noted that the earlier MRI had been taken in 2008 because a couch had fallen on the Veteran’s knee. See May 2015 C&P Exam, page 15. Finally, a Dr. Cohen submitted a June 2019 letter, opining that there was a 50 percent chance or greater that the Veteran’s left knee problems were due to his right knee injury while in the military. After reviewing radiographs of both knees, as well as learning of the Veteran’s in-service right knee injury, the physician reasoned that the left knee overcompensated for the right and subsequently developed arthritis and other problems. See June 2019 Medical Treatment Record - Non-Government Facility. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board notes that the May 2015 VA examiner provided thorough reasoning for the opinion; namely, that the Veteran’s left knee disability was not caused by his right knee disability. However, the VA examiner did not consider the Veteran’s claim of over-compensation, or address whether his right knee disability aggravated his left knee. On the other hand, the private physician opined in June 2019 that over-compensation more likely than not contributed the Veteran’s left knee disability after reviewing bilateral knee radiographs. As the two medical opinions addressed different theories of causation and aggravation, and the latter provided a positive nexus after reviewing imaging of the Veteran’s knee, the Board finds the private opinion sufficiently probative to find the evidence at least in equipoise. Resolving benefit-of-the-doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of a left knee disability, and the medical evidence shows that the Veteran's left knee disability has been caused and/or aggravated by his service-connected right knee disability. The Board finds that service connection for a left knee disability is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.