Citation Nr: 21013645 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-00 378 DATE: March 10, 2021 ORDER New and material evidence having been received, the claim of service connection for left knee disability is reopened. Entitlement to service connection for left knee disability is denied. FINDINGS OF FACT 1. In an unappealed August 1970 rating decision, the RO denied a claim of service connection for a left knee disorder. 2. Evidence received since the final August 1970 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a left knee disorder. 3. The preponderance of the evidence of record shows that the Veteran’s noted preexisting left knee disorder was not aggravated by active service. CONCLUSIONS OF LAW 1. The August 1970 rating decision denying service connection for a left knee became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a left knee disorder. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to April 1970. This appeal comes before the Board from an August 2016 RO rating decision which denied service connection for a left knee disorder. The Veteran filed a Notice of Disagreement (NOD) with this rating in May 2017; a statement of the case (SOC) was issued in November 2018 and he perfected this appeal by filing a VA Form I-9 in December 2018. The Board notes that an unappealed rating decision denied service connection for a left knee disorder in August 1970. Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of this section which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156 (c). Although the service treatment records and service personnel records are listed as having been associated with the claims file at various times in 2016 after the prior denial of August 1970, this prior denial specifically cited to the STRs and the pertinent findings therein. Thus, as the STRs were previously before the RO, the Board must still address whether there is new and material evidence to reopen the claims. Id. 1. New and material evidence to reopen a previously denied claim for service connection for a left knee disability A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the August 1970 rating decision was the last final disallowance, the Board must review all of the evidence submitted since this rating decision to determine whether the Veteran’s claim of service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration 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 the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. 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). Service connection was previously denied in an August 1970 rating which determined that a pre-existing left knee disability was not shown by the service treatment records to have been aggravated by service. This rating noted that the service treatment records showed that he was discharged for not meeting medical fitness standards at the time of enlistment, with a history of injury to his left knee while playing football in 1967 prior to service, with a diagnosis of a torn medial meniscus requiring 9 months bracing noted. The Veteran was noted to have recurrent left knee problems requiring the reapplication of the brace on several occasions and he was cautioned against running or strenuous activities involving the left leg. He was noted to report his left knee gave way 10 times in 1969 and then he fell down some stairs in January 1970 when it gave way. Findings from a May 1970 VA examination were noted to show a diagnosis of residuals of injury to the left knee with laxity of ligament. The RO noted the examination’s findings of subjective complaints of painful walking, swelling and collapsing, with X-ray findings of sharpening of intercondylar eminences without other abnormalities, some mild pain on pressure, measurements of 0.75 inch less in circumference than the right knee, full range of motion but with mild pain and crepitus. The RO determined that service treatment records did not show that his service aggravated the preexisting left knee disability. Evidence received after the August 1970 rating decision includes a September 2018 VA examination that diagnosed degenerative arthritis of the left knee and provided an unfavorable etiology opinion stating that the left knee disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale stated that there was no documentation of ongoing complaints of, or treatment for, or a continuity of care for a chronic left knee condition related to service. The evidence also includes the Veteran’s January 2021 hearing testimony in which he alleged that at the time of the June 1969 entrance examination he had a history of complaints of a left knee problem with no sequelae at the time. The Veteran testified that after his pre-service injury he did not have problems with the left knee at the time he entered service. He testified that the knee gave out when he was walking down a flight of stairs during AIT in service. He testified that he continued to have left knee symptoms and was discharged shortly after this incident. He testified that after service he had ongoing symptoms of left knee pain after service and indicated that he sought treatment including injections and braces shortly after discharge. The lay evidence of the Veteran’s hearing testimony is new to the record, relates to a previously unestablished nexus to support the claim, in this case evidence of continued left knee symptomatology post service, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Accordingly, the claim is reopened. 2. Left Knee Disability In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically 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, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, to include arthritis, shall be presumed to have been incurred in service if manifested to a degree of 10 percent within the first year following 90 days or more active service, even if there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. § 1111, 1137. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The disease or injury must be clearly specified or diagnosed on the induction examination; vague symptoms are not enough to rebut the presumption. However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If an increase in disability is shown during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was actually caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). Therefore, a veteran must initially establish only that a preexisting condition worsened during service, and at that point the veteran has the benefit of the presumption of aggravation. Moreover, the presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation per the Schedule for Rating Disabilities (Rating Schedule). Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Service treatment records includes records from prior to service showing a pre-existing disorder of the left knee. These include a June 1969 letter from a doctor addressed “to whom it may concern” stating that the Veteran had been seen in his office in September 1967 in reference to an injury to his left knee playing football. A diagnosis of tear of the medial meniscus was made and he was placed in a knee brace for 9 months. The letter noted recurring problems requiring reapplication of the knee brace on several occasions. He has been cautioned against running or any strenuous activities involving the left lower extremity. A June 1969 induction examination noted occasional pain in the left knee and referenced the doctor’s letter. This examination determined the Veteran was physically disqualified due to his left knee disorder and an orthopedic consult was recommended. A few days prior to his induction date of August 18, 1969, an August 12, 1969 letter from a physician indicated that the Veteran was seen on this date and gave a history of left knee injury playing football. He was noted to have been treated for a torn cartilage in 1967. Since that time, he’s had difficulty with his knee locking. On exam there was an audible click and a positive grinding test. This doctor felt that he has a torn lateral meniscus causing difficulty and recommended surgery to remove the cartilage. The doctor hoped that this will help in evaluating the Veteran for Armed Services. Given the above, the evidence shows that the Veteran’s left knee disorder preexisted service because it was noted on examination when he was accepted and enrolled into service, and the presumption of soundness on induction as to a left knee disability is therefore not applicable. 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b). Thus, the claim of service connection for a left knee disorder will be considered on a theory of aggravation of a pre-existing disability. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was an increase in the severity of the Veteran’s left knee disorder during service. Following his induction, the Veteran was treated in January 1970 with a history of football injury noted to have been treated in September 1967 by a doctor who felt he had a torn left lateral meniscus, with the subsequent evaluation in August 1969 noted to include findings of audible click, grinding & torn lateral meniscus. He was noted to have had his knee give way up to 10 times this past year. Last night his left knee gave way and he fell downstairs. On examination he had mild effusions, and grinding on the lateral aspect of the knee with flexion. He had a palpable click with McMurray laterally, and had pain with meniscus compression. He had joint pain and said that he has a hump in the knee sometimes. The impression rendered was of probable torn lateral meniscus. Later in January 1970 he was placed on limited duty for knee injury and used crutches out of bed. Other records from January 1970 described his swelling as having gone down. He still had some grating medially also. He also wore down his shoes. Plans included physical therapy and lateral heel shoes wedge. In February 1970 the Veteran underwent orthopedic evaluation. A history of left knee problems since 1967 was noted, with an injury playing football in September 1967, at which time a suspected meniscus tear was discovered. He had been given a knee brace and continued to have knee problems requiring the use of the brace on several occasions following flareup of symptoms including locking, clicking, and effusion. He had been evaluated in August 1969 by doctor who found an audible click and positive grind test. He was first seen in Ireland Army hospital in January 1970 and stated that his knee had given way approximately 10 times during past year. In January, he fell downstairs after his knee gave way and he remembered nothing until he woke up in the emergency room. The knee was bandaged, and he was given crutches. He returned to the orthopedic clinic a few days later in January 1970 and continued to have symptoms including mild effusion, grinding and crepitus and positive McMurray’s with audible click. He also had some pain on the medial aspect of the knee with meniscus compression and pressure in the joint line. He was noted to have been treated with physical therapy and crutches. He was noted to have made some progress but continued to have some effusion as of the date of the February 1970 examination. X-rays were within normal limits. The impression was torn lateral meniscus and possible tear of medial meniscus L knee. The Veteran was deemed unfit for induction. A few days later in February 1970 he underwent a separation examination which noted slight swelling left knee with tenderness medially and a summary of defects of internal derangement left knee and possible torn lateral meniscus. The February 1970 separation report of medical history showed he answered “yes” trick/locked knee. The report of a May 1970 VA examination disclosed a history of left knee complaints of painful walking, swelling, and knee collapses. On examination of the musculoskeletal system, the Veteran was said to have injured his left knee playing football in 1965. X rays done then were negative for fracture. He was treated by analgesics and muscle relaxants and wore an Ace bandage for a while. At present he claimed pain when walking and after prolonged standing. He also claimed weakness in the knee but denies locking or dislocation. On examination he stood on heels and toes without difficulty, but squatting was restricted and unstable. On examination of the left knee there was slightly increased circumference when measured against the right, with the left knee measuring 15 inches and the right knee measuring 14 and ¼ inch. There was mild pain on pressure of the medial aspect of the knee joint but no redness, swelling or evidence of intra articular fluid. There was no loss of motion on flexion or extension but there was mild pain and crepitus on full range of motion in both planes. There was no abnormal A-P motion of the knee joint but slight lateral motion that suggest laxity of the ligaments. There was no sensory or motor deficit on gross neurological exam. Reflexes are equal and symmetric. The rest of his exam was unremarkable. X-ray of the left knee showed some sharpening of the inter condylar eminences without any other abnormalities noted. He was diagnosed with residuals injury left knee with laxity of ligaments. No opinion was given as to whether the pre-existing left knee disorder was aggravated by service. The report of a September 2018 VA examination diagnosed arthritis, degenerative, left knee, with the date of diagnosis in 2017. The reported that his left knee was weak prior to service. He failed a few draft physicals but then passed the final one. He stated that while in service he fell down a flight of stairs, was examined, and given a brace and cane. He reportedly was told if he stayed in service they would operate, but decided to separate. He stated that he had pain off and on since separation. He said that he was seen and treated but did not remember the doctor’s names. The pain was now unbearable and he had been told that he needs a total knee replacement. He now had daily knee pain. Physical examination showed limited range of motion was 0-90 degrees, pain on motion, mild tenderness medial and lateral, reduced 4/5 muscle strength, muscle atrophy measured at 49.5 centimeters compared to right which measured at 53 centimeters, no evidence of recurrent subluxation or lateral instability. A history of recurrent effusion (left knee swelling) was noted. Stability testing disclosed positive Lachman for anterior instability of 1+. Following examination, an opinion was given stating that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale given was that the Veteran was on active duty for 5 months. The examiner noted that the letter prior to service dated August 12, 1969 from the doctor notes a diagnosis of torn lateral meniscus of the left knee and that operation was recommended. The STRs showed complaint of left knee pain in January 1970 with a report that his knee gave out on him 10 times since August 1969. It is documented that he fell down a flight of stairs 10 January and the Veteran did not remember anything until waking up in the ER. The examiner also noted that separation examination noted injury to left knee in about 1966 while playing football; he was told he had torn cartilage. No operation was performed. He has had persistent pain and swelling after prolonged standing and walking. Orthopedic consult in January 1970 showed a torn lateral meniscus. The examiner stated that the Veteran was medically boarded out of service. There are no post separation medical records found to show continued complaint of or treatment for a left knee condition from 1970 until 47 years later, when evaluated by orthopedics1-25-17. The examiner found no documentation of ongoing complaint of or treatment for or continuity of care for a chronic left knee condition related to service. No other post service treatment records for left knee problems are shown to be of record. The Board notes the Veteran’s assertions to the effect that he had aggravated his left knee disorder in service with continued symptomatology of the left knee following his active service. He noted at hearing that he had no residual symptoms at the time he entered service. The Board notes further that the Veteran is in fact competent to report his in-service experiences, including injury. See 38 C.F.R. § 3.159 (a)(2). Nonetheless, the Board finds that the preponderance of the evidence of record is against a finding that his pre-existing left knee disability was aggravated by service. The evidence prior to service indicated he had injured his knee with a torn medial meniscus diagnosed in 1967 and continued with such diagnosis, per the doctors’ letters of June 1969 and August 1969. Those letters noted pre-service left knee issues including recurrent instability requiring bracing and issues with his knee locking. There were physical findings of audible click and a positive grinding test. Overall, such medical evidence is at odds with the Veteran’s assertions that the pre-existing left knee disorder had resolved prior to his entrance into service. Moreover, the severity of his pre-service left knee issues was further confirmed by his being recommended to avoid strenuous activities and being found unfit for induction prior to service. His pre-service symptoms were similar to those shown during his brief time in service, with the conclusion again drawn that he was unfit for service per the orthopedic examination of February 1970. Finally, the opinion from the September 2018 VA examination that his pre-existing left knee was not aggravated by service was accompanied by adequate rationale. There is not shown to be any medical evidence of record to contradict this opinion, and in fact no post-service treatment records addressing his left knee disorder. (Continued on the next page)   The Board finds that the evidence fails to show that the pre-existing left knee injury was aggravated during active service. Hence, the claim must fail. 38 C.F.R. §§ 3.303, 3.304(b), 3.306. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.