Citation Nr: 21021013 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-41 588 DATE: April 9, 2021 ORDER New and material evidence having been received, the application to reopen entitlement to service connection for a right knee disorder is granted. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from April 1968 to November 1969. 2. Service connection for a right knee disorder was denied by the Board in May 1977 and again in April 1982. 3. The evidence submitted since the April 1982 decision is new and material as it raises a reasonable possibility of substantiating the claim. 4. The Veteran sustained a right knee strain in service; symptoms of a right knee disorder were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. A current right knee disorder, diagnosed as a right knee strain and osteoarthritis, is not causally or etiologically related to service. 5. A left knee disorder, diagnosed as osteoarthritis, was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; a current left knee disorder is not causally or etiologically related to service and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. The April 1982 Board decision, which denied service connection for a right knee disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2020). 2. The evidence received since the April 1982 Board decision regarding a right knee disorder is new and material and the claim is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. A right knee disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 4. A left knee disorder was not incurred in service, is not presumed to have been incurred in service, and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Right Knee Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The claim for a right knee disorder was originally denied in a May 1977 Board decision for lack of a chronic injury during service. The claim was denied again by the Board in April 1982 on the basis that the new evidence submitted since the prior denial did not present a new factual basis warranting service connection. He filed to reopen the claim in June 2016 and was again denied in a March 2017 rating decision by the Regional Office (RO). This denial forms the basis of this appeal. Evidence received since the prior final denial in April 1982 includes VA clinical treatment records and a July 2016 private medical opinion which stated that the Veteran’s in-service right knee injury led to a limp and eventually required right knee replacement surgery. As such, this evidence relates to a medical nexus and raises a reasonable possibility of substantiating the claim as it relates to a previously unestablished element of service connection. Therefore, the evidence is new and material and the claim is reopened. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Right Knee As the claim for service connection for a right knee disorder has been reopened, the Board will address the claim on the merits. Turning to the medical evidence, a July 2016 VA examiner indicated a diagnosis of a right knee strain. In addition, an August 2003 private treatment note showed a diagnosis of osteoarthritis of the right knee. Further, the Veteran has a history of a total knee joint replacement which resulted in intermediate degrees of residual weakness, pain, or limitation of motion. Accordingly, a right knee disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) indicated a right knee injury that healed without residuals. Specifically, an October 1969 treatment note reflected a diagnosis of a right knee strain after the Veteran injured his right leg in a fall. It was recommended that he be placed on light duty for five days. There were no further complaints of a right knee disorder during service and the November 1969 separation examination was silent for problems related to the right knee. The lower extremities and musculoskeletal system were noted as normal at separation and no defects were noted. As such, the STRs do not reflect the in-service incurrence of a chronic right knee disorder. To the extent that the Veteran asserts a nexus between the in-service knee strain and current right knee disorder, in July 2016, a private physician opined that current right knee pain was a direct result of a service-related injury in the right knee. He stated that the Veteran tore his right anterior cruciate ligament while in-service, although it was not documented because an MRI was not available at the time. Further, he wrote that the Veteran has favored his right knee over time which eventually required right knee replacement surgery. This evidence weighs in favor of the claim. On the other hand, a July 2016 VA examiner concluded that the Veteran’s current left and right knee disorders were caused by or a result of post-service injuries. After a review of the medical history, the examiner noted that the Veteran was diagnosed with a right knee strain during service, which typically would resolve without residuals. Further, the examiner pointed to the lack of objective continuity of care for the right knee disorder. Specifically, the examiner noted the lack of a right knee disorder noted during the 1969 separation and the lack of residuals of a right knee injury found during a June 1970 VA disability examination. Next, the examiner noted multiple post-service knee injuries, including right knee injuries in October 1971 and December 1971, and a left knee injury in 1987. As such, he concluded that a current right knee disorder was more likely related to the post-service knee injuries. This evidence weighs against the claim. Based on the above, the medical weighs against the claim. The VA examiner’s opinion is afforded more probative value than the private opinion because it provided a more thorough rationale and was based on the objective medical evidence, including the Veteran’s entire medical history with post-service injuries. Specifically, the private clinician did not take into consideration any post-service injuries. Further, the basis of the opinion – that the Veteran tore the right anterior cruciate ligament in 1969 – is speculative. Particularly in light of normal findings of the right knee at service separation in November 1969 and in a June 1970 post-service examination, which the private clinician did not discuss. As such, the medical evidence does not support a nexus between a current right knee disorder and service. Turning to presumptive service connection, as noted, right knee osteoarthritis has been diagnosed, which is entitled to presumptive service connection if shown to be chronic in service, or with continuous symptoms since service, or if it manifested to a degree of 10 percent or more within one year of service separation. The medical evidence, however, does not support presumptive service connection. First, no chronic disease or injury was shown in service. While the Veteran was treated for a right knee strain in service, no chronic symptoms were shown as a result of this injury. Significant is the lack of knee complaints at the time of service separation. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran’s in-service injury occurred in October 1969 and he was discharged from service in November 1969 with no complaints of knee symptoms. Further, a June 1970 VA examination showed no residuals of a right knee sprain. The examination noted that the Veteran had no symptoms in the right leg at the time of the examination. The examiner noted that there was no swelling and range of motion was normal. Although the Veteran sought treatment for the right knee beginning in the 1970’s, the record also reflects that he first sought treatment after service in October 1971 for a right knee injury sustained while playing backyard football. Further, he received treatment in December 1971 for a recent right knee twist. As such, the medical evidence reflects that symptoms of a right knee disorder were not continuous since service and he did not begin receiving treatment for the right knee until he sustained post-service injuries. Consequently, the medical evidence shows intervening injuries and does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As noted above, the Veteran reported no symptoms in the right knee or leg during a June 1970 VA examination, approximately 7 months after separation. There is no medical evidence to support a chronic right knee injury within one year of separation. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Left Knee Turning to the medical evidence, March 2016 private medical records reflect a diagnosis of mild to moderate osteoarthritis of the left knee. Further, clinical treatment records reflect complaints of left knee soreness and pain. As such, a current left knee disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the Veteran does not contend, nor do the STRs show, that a left knee injury happened during service. As such, the evidence does not support direct service connection. Rather, the Veteran’s main contention is that a current left knee disorder is secondary to a right knee disorder. While he has been diagnosed with a left knee disorder, he is not currently service-connected for a right knee disability. As such, service connection may not be granted on a secondary basis. Turning to presumptive service connection, as noted, left knee osteoarthritis has been diagnosed, which is entitled to presumptive service connection if shown to be chronic in service, or with continuous symptoms since service, or if it manifested to a degree of 10 percent or more within one year of service separation. The medical evidence, however, does not support presumptive service connection. First, no chronic disease or injury was shown in service. While the Veteran was treated for a right knee strain in service, there was no evidence of a left knee disorder. Significant is the lack of knee complaints at the time of service separation. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. The Veteran was discharged in November 1969 with no complaints of knee symptoms. During the September 2020 Board hearing, he testified that he began having trouble with his left knee in approximately 1990. Further, the medical evidence does not show complaints of or treatment for a left knee disorder until approximately 1987, nearly 20 years after separation from service. Consequently, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As noted above, the Veteran reported no symptoms in the left knee or leg during a June 1970 VA examination, approximately 7 months after separation. There is no medical evidence to support a chronic left knee injury within one year of separation. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. The Board has considered the Veteran’s lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examination obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.