Citation Nr: 21032604 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-17 220 DATE: May 27, 2021 ORDER The application to reopen the claim of entitlement to service connection for a right knee disability is granted. The application to reopen the claim of entitlement to service connection for a left knee disability is granted. Service connection for a right knee disability, diagnosed as patellofemoral syndrome, is granted. Service connection for a left knee disability, diagnosed as patellofemoral syndrome, is granted. FINDINGS OF FACT 1. March 2009 and February 2011 rating decisions denied service connection for a right knee and left knee disability. The Veteran did not appeal those decisions, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the final February 2011 rating decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee and left knee disability. 3. The evidence is in equipoise as to whether the Veteran's currently diagnosed right and left knee disorder first manifested in service and was incurred in service. CONCLUSIONS OF LAW 1. The March 2009 and February 2011 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a right knee and a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(d). 4. The criteria to establish entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Of note, in January 2016 the Veteran filed a timely notice of disagreement (NOD) to the January 2015 rating decision. A statement of the case (SOC) was issued in February 2016. The Veteran filed his substantive appeal to the Board in April 2016, a few days after the 60-day permissible period for submission of a timely VA Form 9 (substantive appeal). In August 2016 the RO issued a supplemental statement of the case (SSOC) and certified the appeal in September 2016, and thus the Board waives the timeliness of the substantive appeal pursuant to the ruling in Percy. See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). The United States Court of Appeals for Veterans Claims (Court) has held in Percy, that an untimely substantive appeal "does not bar the Board's jurisdiction over a matter." The Board finds that the facts of this Veteran's case fall squarely within the parameters of the holding in Percy, as the RO continued to acknowledge and address the bilateral knee disability issue as if it had been appealed and accepted with a waiver of a timely perfection. The Court in Percy further held that although a substantive appeal was not timely filed, the filing of a substantive appeal is not a jurisdictional requirement; the filing of a timely substantive appeal may be waived; and where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal. Percy, supra. As such, the actions of the RO in this case (announcing the adverse adjudication of the bilateral knee disability in the August 2016 SSOC) that indicated that the RO had waived the Veteran's untimely filing of his substantive appeal, thereby giving greater indication that the Veteran's appeal should have been forwarded to the Board for disposition. See also 38 C.F.R. §§ 20.2, 20.109. Also, of note, in the Veteran's April 2016 VA Form 9, he selected a Board hearing. In June 2019 the appropriate Veteran Service Organization (VSO) was notified of his hearing. The Veteran subsequently failed to report for his Board hearing. The Board finds that the Veteran had adequate notice of the hearing as he received two letters to his most recent address containing information regarding his hearing. Notably, to this date, there have been no subsequent request for a hearing or an explanation demonstrating good cause of the Veteran's failure to report. Thus, the Board finds that the Veteran's request for a Board hearing has been withdrawn. 38 C.F.R. § 20.704(d). New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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 RO denied the Veteran's initial claim for service connection for a bilateral knee disability in a March 2009 rating decision for lack of a current diagnosis. The Veteran was informed of this decision later that month, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the March 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). In a subsequent February 2011 rating decision, the RO denied the Veteran's February 2010 bilateral knee disability claim to reopen, due to the same findings. The Veteran was informed of this decision a few days later, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the February 2011 rating decision became final. See Id. Evidence received more than one year since the most recent final February 2011 rating decision includes evidence of a current diagnosis of patellofemoral pain syndrome. See January 2015 VA knee examination. This evidence is new and, when coupled with the duty to assist, raises a reasonable possibility of substantiating the Veteran's claim. Id. Therefore, the claims are reopened. Service Connection for Right and Left Knee DisorderLaws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board acknowledges that the Veteran's entrance report of medical history noted a previous problem with the right knee, however, the Veteran indicated that he had "no active symptoms." Importantly, the report of medical examination did not note any defects or diagnoses, and thus, the Board finds that the Veteran was presumed sound at enlistment regarding both knees. Service treatment records include a July 1999 treatment note where the Veteran was noted to have occasional right knee pain and was found to have "mild patellofemoral crepitus." May 2002 service records show complaints of right knee pain. At that time, the Veteran indicated that he had a trick or locked knee in in 1998, but his knee was hurting again (3 days prior). Upon examination, the Veteran had a positive patella grind and "possible" LCL strain. A December 2002 service note indicated that the Veteran used a knee brace to ease the pain for the right knee when it hurt. In June 2003, the Veteran reported intermittent chronic right knee pain with onset in service. He indicated that he noticed the pain after extensive physical training, long hikes, and a difficult drill regiment. In April 2003, the Veteran was seen for left knee pain. In a December 2002 Report of Medical history, the Veteran specifically checked "YES" as to having "knee trouble." He further explained that, if pushed ot hard, both knees hurt "off and on." The Veteran also indicated that he used a knee brace to help ease his pain. In his claim for VA compensation benefits, the Veteran indicated that his knee pain began in 2001. VA treatment records dated in December 2015 show that the Veteran was seen for bilateral knee pain "since service in the Marine Corps with repeated trauma and overuse." At that time, the Veteran reported that, during service, there were times in the past that his knees would swell and lock in place due to carrying heavy packs. During a January 2015 VA knee examination, the Veteran was diagnosed with patellofemoral syndrome bilaterally. At that time, he indicated that, although he had a knee injury prior to service, he did not have any symptoms at the time of service entrance. The Veteran also reported that, in 2001/2002, while deployed in Japan, both knees started bothering him during a march. The Veteran noticed swelling and pain in the knees. Regarding the right knee patellofemoral pain syndrome, the January 2015 VA examiner reasoned that the Veteran's disability was not due to service as the condition he has now was not the same condition he had in service. The Board finds this examination inadequate, in that the examiner assumed that the conditions may not be related or arose out of the same circumstance, or that every type of knee pain the Veteran experienced in service was adequately recorded. Additionally, the examination did not indicate that the examiner adequately considered the Veteran's lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate if it does not consider all the relevant evidence of record, including lay statements). Regarding the left knee patellofemoral pain syndrome, the examiner opined that the Veteran had a left knee sprain, which clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. As to the examiner's statement of a pre-existing injury, a Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board acknowledges the Veteran's statement that he did not have a pre-existing knee injury and that he had no problems with his knee when he enlisted in the military. See January 2016 NOD. As the premise of the examination was incorrect, the Board finds this medical opinion lacks probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Based on the evidence discussed above, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a bilateral knee disorder in service and since service separation. The evidence indicates that the Veteran's knee symptoms which first manifested in service are the basis for the same bilateral knee condition diagnosed after service separation. For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right and left knee disabilities were incurred in service. Accordingly, service connection is warranted. 38 C.F.R. § 3.102. The appeal is granted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.