Citation Nr: 22014369 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-03 974 DATE: March 12, 2022 ORDER The claim of entitlement to service connection for a right knee disorder is reopened. The claim of entitlement to service connection for a left knee disorder is reopened. The claim of entitlement to service connection for a back disorder is reopened. Service connection for a right knee disorder is granted. Service connection for a left knee disorder is granted. Service connection for a back disorder is granted. FINDINGS OF FACT 1. An April 2013 rating decision denied the Veteran's claim of service connection for a right knee disorder because the RO found that the evidence of record did not show a causal link between the Veteran's current condition and his active service; the Veteran did not appeal the decision or submit new and material evidence within one year. 2. Additional evidence received since the April 2013 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim seeking service connection for a right knee disorder, and raises a reasonable possibility of substantiating that claim. 3. An April 2013 rating decision denied the Veteran's claim of service connection for a left knee disorder because the RO found that the evidence of record did not show a causal link between the Veteran's current condition and his active service; the Veteran did not appeal the decision or submit new and material evidence within one year. 4. Additional evidence received since the April 2013 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim seeking service connection for a left knee disorder, and raises a reasonable possibility of substantiating that claim. 5. An April 2013 rating decision denied the Veteran's claim of service connection for a back disorder because the RO found that the evidence of record did not show a current disability or a causal link between the Veteran's current condition and his active service; the Veteran did not appeal the decision or submit new and material evidence within one year. 6. Additional evidence received since the April 2013 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim seeking service connection for a back disorder, and raises a reasonable possibility of substantiating that claim. 7. Resolving all doubt in the Veteran's favor, his right knee disorder is related to his active service. 8. Resolving all doubt in the Veteran's favor, his left knee disorder is related to his active service. 9. Resolving all doubt in the Veteran's favor, his back disorder is related to his active service. CONCLUSIONS OF LAW 1. The April 2013 rating decision denying service connection for a right knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 2013 rating decision denying service connection for a left knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received sufficient to reopen the claim of service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The April 2013 rating decision denying service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence has been received sufficient to reopen the claim of service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for a left knee disorder have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 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 January 1982 to October 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). On April 6, 2021 the Veteran testified at a Board hearing before the undersigned; a transcript of the hearing is associated with the record. I. New and Material Evidence The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. That is, the Board has a jurisdictional responsibility to consider whether the claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. See 38 U.S.C. § 7105. The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and it viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Reopening the claims of service connection for a right knee disorder and a left knee disorder The Veteran contends he is entitled to service connection for a right knee disorder and service connection for a left knee disorder. The Veteran first filed a claim of service connection for a bilateral knee disorder in September 2012. On April 9, 2013, the RO issued a rating decision in which they denied service connection for a right knee disorder and service connection for a left knee disorder. The Veteran was notified of this decision in an April 15, 2013 notification letter. The Veteran did not appeal this decision or submit new and material evidence within one year. Therefore, the April 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In May 2014, the Veteran submitted a request to reopen his claim of service connection for a bilateral knee disorder. In a December 2016 rating decision, the RO continued the denial of the Veteran's claim. The Veteran timely appealed this decision. In the April 2013 rating decision, the RO denied the Veteran's claims of service connection for a right knee disorder and service connection for a left knee disorder because the RO found that the evidence of record did not show that the Veteran's current right knee disorder and left knee disorder were incurred in or caused by active service. Therefore, the unestablished facts in this case concern whether the Veteran's current right knee disorder and/or left knee disorder are causally related to his active service. Looking at the evidence submitted subsequent to the April 2013 rating decision, the Veteran submitted treatment records from his private chiropractor concerning his knees and back condition. The Veteran also submitted a medical nexus opinion from his private chiropractor concerning the knees. Additionally, as noted earlier, the Veteran testified at an April 2021 Board hearing. More recent VA treatment records concerning the Veteran's knee condition were also added to the record. The Board finds that the evidence described above relates to unestablished facts in the Veteran's claims of service connection for a right knee disorder and service connection for a left knee disorder. Specifically, the evidence concerns whether the Veteran's current disability is causally related to his active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.156(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the Board finds that new and material evidence has been added to the record that has a reasonable possibility of substantiating the claims of service connection for a right knee disorder and service connection for a left knee disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Therefore, the claims must be reopened. See 38 C.F.R. § 3.156(a). 2. Reopening the claim of service connection for a back disorder The Veteran contends he is entitled to service connection for a back disorder. The Veteran first filed a claim of service connection for a back disorder in September 2012. On April 9, 2013, the RO issued a rating decision in which they denied service connection for a back disorder. The Veteran was notified of this decision in an April 15, 2013 notification letter. The Veteran did not appeal this decision or submit new and material evidence within one year. Therefore, the April 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In May 2014, the Veteran submitted a request to reopen his claim of service connection for a back disorder. In a December 2016 rating decision, the RO continued the denial of the Veteran's claim. The Veteran timely appealed this decision. In the April 2013 rating decision, the RO denied the Veteran's claims of service connection for a back disorder because the RO found that the evidence of record did not show that the Veteran's had a current diagnosed disability. Therefore, the unestablished facts in this case concern whether the Veteran has a currently diagnosed back disability that is causally related to his active service. Looking at the evidence submitted subsequent to the April 2013 rating decision, the Veteran submitted treatment records from his private chiropractor concerning his back condition. These treatment records show a diagnosis for the Veteran's back disorder. The Veteran also submitted a medical nexus opinion from his private chiropractor concerning the back condition. Additionally, as noted earlier, the Veteran testified at an April 2021 Board hearing. More recent VA treatment records concerning the Veteran's back condition were also added to the record. The Board finds that the evidence described above relates to unestablished facts in the Veteran's claim of service connection for a back disorder. Specifically, the evidence concerns whether the Veteran has a current back disability that is causally related to his active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.156(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the Board finds that new and material evidence has been added to the record that has a reasonable possibility of substantiating the claim of service connection for a back disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Therefore, the claim must be reopened. See 38 C.F.R. § 3.156(a). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for a right knee disorder and a left knee disorder The Veteran contends that he is entitled to service connection for a right knee disorder and service connection for a left knee disorder. As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of bilateral patellofemoral arthritis, as shown by a March 2013 VA examination. A November 2012 VA Primary Care Note also diagnosed the Veteran with bilateral knee pain and osteoarthritis. At the April 2021 Board hearing, the Veteran stated that his knee pain did not go away after active service. He dealt with the pain and took aspirin and painkillers. He reported that he had been limping because of his left knee for about 15 years. He stated that his right knee problems began around the same time as his left knee problems, and he noted that he had no injuries to the right or left knee after active service. He also noted that the right knee is not as bad as the left knee, but he has pain with it every day. Looking at the Veteran's service treatment records (STRs), in an April 1984 treatment note, the Veteran complained of left knee pain that was "killing him" for about one week with a long run that was approximately nine miles. The examiner gave an assessment of patellofemoral arthralgia and recommended that the Veteran run at his own pace up to two miles for one week. In an August 1985 treatment note, the Veteran complained of knee pain that had started after running the day before. He noted that he was running further and on different types of terrain than usual. Weight-bearing caused pain. There was crepitus in both knees with more on the left, and the Veteran had normal flexion and extension. The examiner gave an assessment of patellofemoral syndrome. In a January 1986 treatment note, the Veteran complained of pain in both knees that had been on and off for two years when bending. The examiner observed that the Veteran's knees pop, and there was mild pain when palpating in the right patella. The examiner gave an assessment of chondromalacia and knee pain and recommended that the Veteran avoid knee bends and running over two miles. In an April 1986 treatment note, the Veteran complained of left knee pain with a six-mile road march the day before. There was no specific trauma. The Veteran had full range of motion (ROM) with pain. The examiner gave an assessment of left knee sprain. In a January 1988 emergency care and treatment note, the Veteran reported that he fell off a bicycle and injured his left wrist, hand, and left knee. He also complained of soreness in the left lateral and low rib area. He had slight soreness in the left anterior knee with slight ecchymosis. There was full ROM and no effusion. An X-ray of the knee was within normal limits. The examiner gave an assessment of contusion of the knees. In a January 1989 treatment note, the Veteran complained of left knee trauma. He was playing basketball when he hurt his knee. He was in pain, but it was not severe. The examiner found that the injury did not prevent weight-bearing. The Veteran had full ROM. The examiner gave an assessment of knee strain or sprain. The Veteran returned the next day and stated that his knee felt worse. The examiner observed that the knee showed signs of more swelling, and there was some limited ROM. The examiner again gave an assessment of strain or sprain. The Veteran was placed on a self-care protocol with Tylenol, ice packs, and knee wraps. There is no diagnosis or treatment of right knee or left knee arthritis from the year immediately following the Veteran's active service. Thus, service connection may not be presumed here based on manifestation of arthritis within one year of discharge from active service. The one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112. The Board acknowledges the Veteran's representative's statement at the April 2021 Board hearing that arthralgia should be a chronic disease under 38 C.F.R. § 3.309. However, arthralgia is not the same as arthritis, nor is it listed under 38 C.F.R. § 3.309; and the Board does not find arthralgia to be analogous to arthritis for purposes of VA service connection. In a November 2012 VA Primary Care Note, the Veteran reported bilateral knee pain with popping and grinding. The examiner found medial crepitus on the left with flexion and extension and lateral crepitus on the right with flexion and extension, as well as loud popping with flexion. The examiner gave an assessment of osteoarthritis. In a December 2012 VA Orthopedic Surgery Consult, the Veteran complained of bilateral knee pain. The Veteran also complained of bilateral knee pain in a September 2019 VA Primary Care Note where the examiner noted bilateral knee crepitus on flexion and extension. In a March 2013 VA examination for the knees, the Veteran reported bilateral knee pain that he related to service in the military. He noted that he was diagnosed with chondromalacia of patella during active service. The VA examiner found that the Veteran's knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's current bilateral knee pain is consistent with patellofemoral arthritis, which is more likely due to normal aging than his previous diagnosis of chondromalacia. At the April 2021 Board hearing, the Veteran's representative asserted that the March 2013 VA examination was inadequate as the examiner did not specifically cite any medical records, and there was no analysis of the treatment records, including the Veteran's in-service treatment of his knees shown in the STRs. The Board finds that the March 2013 VA medical opinion is not adequate because it did not consider the Veteran's reports of ongoing symptoms since active service. In a November 2019 private chiropractic treatment note, the Veteran complained of right and left anterior knee discomfort, which he rated at 9 out of 10. He stated that the onset of pain was gradual and was first noticed more than 30 years ago when he was in military training. He stated that, since the complaint began, the symptoms have generally been worse. He reported that the pain is aggravated by cold weather and truck driving. In another treatment note from the same day, the Veteran stated that his knee problem began in 1983, and the injury happened during military training. In a January 2020 private medical opinion, the Veteran's private chiropractor opined that the Veteran's current bilateral knee condition is as likely as not a result of his military service or otherwise a continuation of the problems noted in the Veteran's STRs. The private chiropractor noted that the Veteran's knee condition did not receive proper care. Based on the evidence as described above, the Board finds the evidence of record is at least in equipoise as to whether the Veteran's right knee and left knee disorders are caused by, aggravated by, or otherwise related to his active service. The Veteran's STRs show multiple treatment notes concerning pain and other problems with the knees during active service, and he has consistently reported ongoing pain and other symptoms in his knees since active service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for a right knee disorder and service connection for a left knee disorder are warranted in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for a back disorder The Veteran contends that he is entitled to service connection for a back disorder. As an initial matter, the Board finds that evidence of record reflects that the Veteran has current diagnoses of segmental and somatic dysfunction of the lumbar region and low back pain, as shown in his private treatment records and a January 2020 medical opinion from his private chiropractor. At the April 2021 Board hearing, the Veteran stated that his back was never back to normal after his first injury, even after separation from active service. He reported that he still has pain from that for which he takes over-the-counter medication such as Advil and Tylenol. He stated that he has not had any other injury since active service that could account for the back pain. He noted that he had been under the care of a chiropractor for the past year. Looking at the Veteran's service treatment records (STRs), in an April 1984 treatment note, the Veteran complained of low back pain with a long run of approximately 10 miles. The examiner observed that the Veteran was tender to palpation in the paravertebral muscles in the lumbosacral area, and he gave an assessment of muscle strain. In a July 1984 treatment note, the Veteran complained of lower back pain for one week. No specific activity was noted to bring about the back pain. The Veteran reported that he just woke up that morning with back pain. He had point tenderness in the thoracic area. Flexion and extension were normal. The examiner gave an assessment of back pain not otherwise specified. In a June 1986 treatment note, the Veteran complained of back pain on the right side for one day. He had hurt his back by lifting heavy boxes. The examiner gave an assessment of muscle strain, and he recommended no physical training or heavy lifting over 16lbs for three days. In a September 1986 treatment note, the Veteran complained of low back pain and difficulty walking due to the back pain. The examiner gave an assessment of soft tissue strain and recommended that the Veteran avoid running, marching, or standing for three days. There is no diagnosis or treatment of arthritis in the back from the year immediately following the Veteran's active service. Thus, service connection may not be presumed here based on manifestation of arthritis within one year of discharge from active service. The one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112. In a November 2019 private chiropractic treatment note, the Veteran complained of lumbar discomfort. He stated that the onset of pain was gradual and was first noticed more than 30 years ago when he was in military training. He stated that, since the complaint began, the symptoms have generally been worse. The Veteran's chiropractor diagnosed him with segmental and somatic dysfunction of the lumbar region. He reported that the pain is aggravated by cold weather and truck driving. In another treatment note from the same day, the Veteran complained of back pain, which he rated at 7 out of 10. The Veteran also complained of low back pain in a November 2019 VA Addendum from the next day. In a January 2020 private medical opinion, the Veteran's private chiropractor reported that the Veteran had a current diagnosis of segmental and somatic dysfunction of the lumbar region and low back pain. The private chiropractor opined that the Veteran's current lumbar spine condition is as likely as not a result of his military service or otherwise a continuation of the problems noted in the Veteran's STRs. The private chiropractor noted that the Veteran's back condition was a result of wear and tear from training and from not receiving correct care. Based on the evidence as described above, the Board finds the evidence of record is at least in equipoise as to whether the Veteran's back disorder is caused by, aggravated by, or otherwise related to his active service. The Veteran's STRs show multiple treatment notes concerning pain and other problems with the back during active service, and he has consistently reported ongoing pain and other symptoms in his back since active service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for a back disorder is warranted in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.