Citation Nr: 21015206 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-14 654 DATE: March 16, 2021 ORDER The application to reopen a previously denied claim of entitlement to service connection for right knee chondromalacia patella (right knee disability) is granted. Entitlement to service connection for right knee disability is granted. FINDINGS OF FACT 1. In a May 2001 decision, the RO denied service connection for right knee disability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the May 2001 decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for right knee disability. 3. The evidence is at least evenly balanced as to whether the Veteran's right knee disability is related to an in-service injury. CONCLUSIONS OF LAW 1. The May 2001 decision that denied the Veteran's claim for entitlement to service connection for right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. 2. New and material evidence has been received to warrant reopening the claim for service connection for right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to December 1979 and from December 1979 to September 1984. An August 1986 Administrative Decision found that the first period of service, which included the time period until June 1980, was faithful and meritorious and there was no bar to benefits for this period of service, but that the service from June 2, 1980 to September 11, 1984 was a bar to all VA benefits. The grant of service connection in this case is based on the first period of service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In that decision, the RO granted the Veteran’s application to reopen his previously denied claim for entitlement to service connection for right knee disability and denied the claim on the merits. 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). The Veteran filed a June 2016 notice of disagreement (NOD) as to his right knee disability. In May 2019 the RO issued a statement of the case (SOC) and in May 2019 the Veteran timely filed a substantive appeal to the Board (via VA Form 9). 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). In deciding whether new and material evidence has been submitted 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a May 2001 decision the RO denied service connection for right knee disability. The RO found that the Veteran had not submitted new and material evidence from a previous denial. The Veteran did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the administrative decision. Thus, the RO’s May 2001 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. As indicated in the discussion below, the evidence received since the May 2001 decision includes VA treatment records and VA examinations that pertain to the Veteran’s right knee disability. As this evidence relates to the basis for the prior denial, it is new and material. Reopening of the claims is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Right knee disability The Veteran previously claimed service connection for a right knee disability which was denied in a September 1986 rating decision. The RO determined that any episodes of right knee pain while in service were manifestations of a previous injury. The Board notes that every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Although there is evidence that the Veteran hurt his right knee prior to service, the second page of the April 1976 entrance examination report contains no notations in the section for summary of defects and diagnoses. The first page of the report appears to be missing. The report of medical history indicates that there was no locking, buckling, swelling, pain, or stiffness in his right knee since his pre-service injury. The Veteran is therefore presumed to have been in sound condition when he entered service. 38 C.F.R. § 3.304(b) (The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b)). A May 2016 VA examiner noted that the Veteran was diagnosed with right knee chondromalacia patella dating back to 1979. Thus, a current right knee disability has been demonstrated. In a February 2016 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he hurt his knee in service and has experienced pain since that injury. A September 1977 STR indicates that the Veteran banged his right knee on a car door which caused him pain. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current right knee disability and an in-service injury. A July 2018 VA examiner opined that the Veteran’s right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that although the Veteran was diagnosed with chondromalacia during service, this injury had resolved, and the Veteran did not seek continued treatment. The July 2018 VA examiner relied primarily on the fact that there was no record of ongoing treatment for a right knee disability when providing her opinion. As the July 2018 VA examiner's opinion was largely based on the absence of contemporaneous medical evidence, it is of little, if any probative weight. See Buchanan, 451 F.3d 1331, 1336, n. 1 (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). A May 2016 VA examiner opined that the Veteran’s right knee disability was less likely than not due to an in-service injury or event. The VA examiner explained that a June 1979 STR attributed the Veteran’s right knee pain to a football injury that predated his service. The VA examiner further stated that if the Veteran’s right knee disability clearly and unmistakably existed prior to service, that it was not aggravated beyond its natural progression by an injury or treatment during service. The VA examiner explained that the Veteran worked in a physically demanded job following his time in service which was likely the cause of his current right knee disability. As previously mentioned, the Veteran is presumed to have been in sound condition when he entered service and therefore the May 2016 VA examiner’s opinion is afforded no probative weight as it is based on the premise that a right knee injury that existed prior to service caused the Veteran’s current right knee disability. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The Veteran has provided lay evidence that he experienced right knee pain since an injury in service. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). Although an April 1976 STR note indicates that the Veteran hurt his right knee prior to service, the Veteran has been presumed to be in sound condition upon entering service and the VA has not rebutted this presumption. Although a June 1979 STR attributed the Veteran’s right knee pain to a football injury that predated service, in a February 2016 letter the Veteran submitted his high school transcript and noted that football was not listed as one of his extracurricular activities. The Veteran reiterated during the Board hearing that he did not play football in high school and the Board finds his testimony credible. Given the competent and credible statements as to the Veteran’s right knee pain, the right knee injury noted in the Veteran’s STRs during a valid period of service, and the flawed negative nexus opinions, the evidence is at least evenly balanced as to whether the Veteran's right knee disability is related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right knee disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.