Citation Nr: 21032187 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-16 007 DATE: May 26, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a right knee disorder is reopened Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder is granted. FINDINGS OF FACT 1. An August 2006 rating decision denied entitlement to service connection for a right knee disorder. Notice of that rating decision was provided to the Veteran that same month, and the Veteran did not perfect an appeal of the August 2006 rating decision or submit new and material evidence within one year of the notification of that decision. 2. Evidence received since the August 2006 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a right knee disorder. 3. With consideration of the benefit of the doubt, the preponderance of the evidence shows that the Veteran's right knee disorder was caused or aggravated by his service-connected left knee disability. CONCLUSIONS OF LAW 1. The August 2006 rating decision is final with respect to the Veteran's claim to establish service connection for a right knee disorder. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the August 2006 rating decision is new and material, and the claim for entitlement to service connection for a right knee disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in favor of the Veteran, a right knee disorder was caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1980 to August 1980. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2021. With regard to the Veteran's claim to reopen the issue of entitlement to service connection for a right knee disorder, the Board finds that new and material evidence has been received. In an August 2006 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee disorder because the evidence did not show that the Veteran's right knee disorder was related to his active duty service or to his service-connected left knee disability. Since the August 2006 rating decision, new and material evidence has been received, including an April 2016 private medical opinion linking the Veteran's current right knee disorder to his service-connected left knee disability. With consideration of this new and relevant medical evidence, the Board finds that new and material evidence has been received which is sufficient to reopen the claim for entitlement to service connection for a right knee disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Accordingly, the claim for entitlement to service connection for a right knee disability is reopened. Parenthetically, the Board observes that an August 2015 rating decision denied reopening the Veteran's claim for service connection for a right knee disorder. This rating decision was issued prior to the November 2016 rating decision on appeal. Notice of the August 2015 rating decision was sent to the Veteran on August 28, 2015. However, because the Veteran submitted a new claim along with new and material evidence on August 26, 2016, within one year of the August 2015 rating decision, the August 2015 rating decision did not become final. The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). After thorough consideration of the evidence of record, the Board concludes that service connection for a right knee disorder is warranted. There is a current diagnosis of right knee osteoarthritis, as noted in an October 2016 VA examination. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the weight of the medical evidence of record reflects that the Veteran's right knee disorder was at least as likely as not caused or aggravated by his service-connected left knee disability. 38 U.S.C. § 1113(b); 38 C.F.R. §§ 3.303; see Allen, 7 Vet. App. 439 (holding that secondary service connection requires that evidence is sufficient to show that the current disability was either caused or aggravated by a service-connected disability). In an April 2016 medical opinion, G.F., M.D. opined that the Veteran's right knee disorder was more likely than not secondary to his service-connected left knee condition, noting that the Veteran's left knee disorder had a negative impact on his right knee. While a November 2016 VA opinion determined that the Veteran's right knee disorder was not proximately due to or the result of his service-connected left knee disability, the rationale provided by the examiner was conclusory in nature. In that regard, the examiner noted merely that the Veteran sustained separate injuries to each knee at separate times. The examiner did not discuss the Veteran's contention that his service-connected left knee disability caused him to overcompensate with his right knee, nor did the examiner address any of the pertinent medical evidence in the claims file aside from dismissing the April 2016 medical opinion as "speculative." Accordingly, the Board does not find the November 2016 VA opinion to be particularly probative in this case. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right knee disorder was caused or aggravated by his service-connected left knee disorder. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for a right knee disorder is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.