Citation Nr: 21022811 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-19 911 DATE: April 19, 2021 ORDER New and material evidence having been received, the claim for service connection for left knee pain, patellofemoral syndrome, and instability is reopened, and to this extent only the appeal is granted. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. An August 2012 rating decision denied the Veteran’s claim for service connection for left knee pain, patellofemoral syndrome, and instability; the Veteran did not appeal that decision or submit new and material evidence during the appeal period, and the decision is final. 2. Evidence received since the August 2012 rating decision denial is new and contributes to a more complete picture surrounding the origins of the claimed disability. 3. The preponderance of the evidence is against finding that the Veteran’s current left knee disorder is related to service. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria to reopen the claim for service connection for patellofemoral syndrome, claimed as left knee pain, are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a Veterans Law Judge in April 2021. However, the Veteran withdrew the hearing request in an April 2021 correspondence. Thus, the Board deems the request for a hearing withdrawn, and will proceed to adjudicate the appeal. 38 C.F.R. § 20.704(e). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for patellofemoral syndrome, claimed as left knee pain Generally, if a claim of entitlement to 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 means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). 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. The threshold to reopen a claim is low. See 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). Service connection for the claimed left knee disorder was initially denied in an August 2012 rating decision because the Veteran did not report for a VA examination, and a persistent disability was not shown in service. The Veteran did not appeal that decision or submit new and material evidence within the appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also, Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The evidence received since the August 2012 denial includes an October 2017 VA examination showing the Veteran's reports of a left knee disorder being related to service. This evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. As the RO considered the underlying service connection claim in the May 2019 Statement of the Case, the Veteran is not prejudiced by the Board’s consideration of the claim on the merits below. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though 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, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for patellofemoral syndrome, claimed as left knee pain The Veteran asserts that he has current chronic left knee pain and instability that are related to service. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current left knee disorder was incurred in or caused by service. Service treatment records show that the Veteran sought treatment for left knee pain after running for five miles in August 2008. The Veteran reported a left knee joint pain in the patellofemoral region when actively moved, and worse with weightbearing. He was diagnosed with patellofemoral syndrome and hamstring insertion strain. As a chronic left knee disability, such as arthritis, was not shown during service or within one year following discharge from service, competent evidence linking the current left knee disability to service is needed to substantiate the claim. However, the only opinion addressing this question is against the claim. In this regard, during the October 2017 VA examination, the Veteran reported that he hurt his knee during service. He had hip open reduction and internal fixation (ORIF) in 2016 secondary to skateboarding accident. The Veteran indicated that he believed the knee pain is related to his in-service injury. The examiner diagnosed the Veteran with shin splints, including tibia and/or fibula stress fracture and/or exertional compartment syndrome, and hamstring insertion strain. The examiner opined that the current left knee pain was less likely as not related to or permanently aggravated by the 2008 occurrence of acute limited right knee patellofemoral syndrome (PFS) and/or the left hamstring insertion strain. The rationale was that the Veteran's records supported acute right knee PFS and shin splint in 2008 after a five mile run, following his release from profile relating to hamstring strain. The examiner noted that he presented with complains of bilateral knee pain, but the provider did not find a condition to diagnose on the left side. The examiner also noted that both left hamstring insertion strain and right knee patellofemoral pain syndrome (PFPS) were treated conservatively. The examiner stated there was not documentation to support ongoing chronic right or left knee or hamstring conditions extending into post active duty periods. The examiner explained that in 2016, the Veteran had an injury that caused hip fracture resulting in ORIF of the hip. The examiner opined that that has resulted in guarding and weight shifting during gait, that aggravates the left knee, causing pain. (Continued on the next page)   Although the Veteran believes that he has a current left knee disorder related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of knee disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the onset and etiology of his current left knee disorder is not competent medical evidence. The Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.