Citation Nr: 18131211
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-36 051
DATE:	August 31, 2018
ORDER
The request to reopen the claims of entitlement to service connection for a right knee condition (to include right knee spurring) and a left knee condition is granted.
Entitlement to service connection for a right knee condition, to include right chondromalacia of the patella and osteoarthritis, is denied.
Entitlement to service connection for a left knee condition, to include arthritis, is denied.
FINDINGS OF FACT
1. Service connection for a right knee condition (to include right knee spurring) and a left knee condition was denied by the Regional Office (RO) in a March 1992 rating decision, which was not appealed and then became final.
2. Evidence received since the March 1992 rating decision is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right knee condition (to include right knee spurring) and a left knee condition.
3. The record evidence does not establish that the Veteran’s current right knee disability, to include right chondromalacia of the patella and osteoarthritis, is due to an injury suffered while on active duty, or that any current right knee disability is otherwise related service.
4. The record evidence does not establish that the Veteran current left knee disability, to include arthritis, is due to an injury suffered while on active duty, or that any left knee disability is otherwise related to service.
CONCLUSIONS OF LAW
1. The March 1992 rating decision, denying entitlement to service connection for a right knee condition (to include right knee spurring) and a left knee condition is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017).
2. The criteria for reopening the claims of entitlement to service for a right knee condition (to include right knee spurring) and a left knee condition have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
3. The criteria for service connection for a right knee condition, to include right chondromalacia patella and osteoarthritis, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017).
4. The criteria for service connection for a left knee condition have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1974 to July 1977.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by VA.  The Veteran perfected his appeal (see June 2013 Notice of Disagreement, August 2014 Statement of the Case, and October 2014 VA Form 9).
The Veteran testified before the undersigned Veterans Law Judge in a February 2018 hearing.  A transcript of the hearing is associated with the claims file.
New and Material Evidence
The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim.  38 U.S.C. § 5018; 38 C.F.R. § 3.156.  New evidence means existing evidence not previously submitted to agency decision-makers.  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.  Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  Id.
For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 511 (1992).
Service connection for a right knee condition (to include right knee spurring) and a left knee condition was previously denied by the RO in a March 1992 rating decision.  Specifically, the RO found that the service treatment records indicated no problems with the left knee; and that, while the Veteran did sustain an injury to the knee and right leg in service, the evidence indicated that such injuries to the lower extremities in service had resolved.  The RO determined that any current right knee condition, to include right knee spurring, was not shown to be related to the injuries in service, and that a left knee condition was not shown on the last VA examination.  New and material evidence was not received within a year of that decision.  38 C.F.R. § 3.156(b).  Although the Veteran was notified of the decision and of her appellate rights in April 1992, she did not file a timely appeal and the March 1992 rating decision became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.    
Since the March 1992 rating decision, new and material evidence has been added to the claims file.  This evidence includes an August 2013 medical statement from a private health care provider who comments that the Veteran’s multiple in-service injuries more than likely contributed to her current right knee osteoarthritis, and thus provides a diagnosis of advancing right knee osteoarthritis as a “service connected injury.”  The Veteran submitted lay (buddy) statements from her family and friend, dated April 2018 and May 2018, which tend to indicate that the Veteran has pain and functional difficulties with her knee(s).
As the August 2013 private medical statement and the April 2018 and May 2018 buddy statements were not a part of the record at the time of the March 1992 rating decision, they are new.  As the August 2013 private medical statement tends to indicate that the Veteran’s current right knee condition is related to service; and as the April 2018 and May 2018 lay statements tend to indicate the Veteran has experienced functional difficulties with her knee due to pain, (albeit the statements are unclear whether one or both knees are involved), they are material.  Accordingly, presuming the credibility of this evidence, new and material evidence has been received.  The claims of entitlement to service connection for a right knee condition (to include right knee spurring) and a left knee condition are reopened.  38 C.F.R. § 3.159(a).
Service Connection
Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, 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. §§ 3.309, 3.307.  In addition, if a condition noted in service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
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).
In determining whether service connection is warranted for any disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

1. Entitlement to service connection for a right knee condition, to include right chondromalacia of the patella and osteoarthritis.
The Veteran contends that her current right knee disorder, to include arthritis, is related to injuries she suffered to the right knee from falls that she sustained in service.
The service treatment records reflect that in May 1974, the Veteran fell while in physical training (“P.T.”) suffering an open area on the knee, elbow, and hand, which was washed and treated with ointment and a bandage.
In March 1975, the Veteran was seen complaining of a pulled muscle in the right leg from roller skating the night before.  Physical examination revealed a sprained right foot.  X-rays of the right foot were negative.  The impression was of a severe sprain of the right foot, for which the treatment plan was to soak, wrap with an ace bandage, and elevate.
The report of medical examination conducted in June 1977, for the Veteran’s separation from service, show that her lower extremities were evaluated as normal, as was her other musculoskeletal system, and that no disorder of the knee attributable to any incident of service was found on examination.  Similarly, a statement of medical condition, which was signed by the Veteran, reflects that there had been no change in her medical condition since the last separation in June 1977.  
The record evidence shows that the earliest indication of a medical complaint for the right knee, after her separation from service, is a December 1991 VA x-ray that showed minimal spurring in the right knee, and a December 1991 report of examination that indicated a diagnosis of osteoarthritis of the knee.  A May 2001 VA medical record showed an assessment for chronic anterior knee pain, and a June 2001 VA medical record showed a diagnosis of right chondromalacia patella. An April 2012 VA x-ray study showed mild to moderate right knee osteoarthritis.         
The record contains several statements from the Veteran in which she asserts that she injured her right knee in service.  The earliest of these statements appears in a December 1991 VA report of examination, in which she reported a history of having hurt the right knee in 1975 during a fall at Fort Bragg, and a history of periodic right knee pain over the years.
An April 2018 buddy statement reflects that the Veteran told him about her fall in service and relates that he believes this fall contributed to the Veteran’s current knee condition.  The April 2018 buddy statement relates that he observed the Veteran using a knee brace, and that she had difficulties over the years with walking, standing, getting up from sitting, bending, climbing stairs, driving, and dressing daily due to her knee pain.
A May 2018 buddy statement relates that she observed the Veteran walking with great knee pain since her separation from service and she believes it was caused by a fall during service.  The May 2018 buddy statement also relates that the Veteran uses a cane and knee brace and has trouble getting up and down from sitting.
While this lay evidence is consistent with the Veteran’s symptoms shown by the medical evidence dated years after her separation from active duty, the service treatment records show that, at the time of the May 1974 fall, the Veteran did not suffer an injury or symptomatology anywhere near the severity suggested by the lay statements.  Instead, the service treatment records disclose that, when the Veteran fell in May 1974 while in “P.T,” it was noted that she suffered an open area on the knee, which was washed and treated with ointment and a bandage.  The Veteran reported no complaints at the time other than falling.  Moreover, when she sprained her right foot while roller skating in March 1975, she reported no subjective complaints pertinent to the knee, and nothing regarding objective signs or pathology of the knee was mentioned at the time of this treatment or found on examination.  Notably, the remainder of the service treatment records do not reflect that the Veteran complained of or was treated for any knee symptoms in March 1975, or that she had any such symptoms that persisted beyond the isolated period of treatment in May 1974.  The fact that the Veteran did not receive any further treatment for knee problems suggests that the knee injury noted in 1974 was acute in nature and resolved without any permanent disability.  In the same way, the June 1977 separation examination revealed a normal clinical evaluation and physical profile findings, and listed no defects or diagnoses relative to the knees.    
The Veteran, as a layperson, is competent to report having suffered a right knee injury while roller skating in service and to have had symptoms of this injury since service.  However, while the Veteran is competent to describe having sustained this type of a right knee injury in service, the Board finds that this testimony is not an accurate depiction of the 1975 injury and symptoms that occurred in service at that time.  The Veteran’s subsequent reports of when and how she injured her right knee in service, including the nature of her right knee symptoms during and since service, are far less credible than the Veteran’s contemporaneous denials of any right knee difficulties during and after May 1974 fall in service.
In short, the Board finds the contemporaneous medical and lay evidence contained in the service treatment records to be a more accurate, reliable and probative account of what the Veteran was experiencing at that time, than the Veteran’s subsequent recollections of an in-service right knee injury with symptoms that continued beyond an isolated period of treatment in May 1974.
As for the remaining buddy statements in April and May of 2018, the Veteran’s family member and friend are competent to testify to the fact they witnessed the Veteran’s complaints of knee pain following her separation from service.  Such testimony establishes post-service knee pain, but it does not establish an in-service origination of the post-service knee pain.  As discussed above, the Board finds that the Veteran’s reports of an in-service right knee injury with symptoms that persisted beyond the isolated period of treatment in May 1974 are not accurate and thus not reliable, as they are at variance with, and expressly refuted by the Veteran’s service treatment records.  When compared against the service treatment records, the fact that these statements have repeated the Veteran’s account of an injury to her right knee in service goes to the basis upon which their statements were made.  The statements relied upon the Veteran’s account of an in-service knee injury with symptoms continuing since service, recitations of which have already been rejected by the Board as inaccurate, unreliable and thus not credible.  Hence, the buddy statements are entitled to no probative value.    
The Board has also considered the August 2013 statement from the private treatment provider.  In this medical statement, the Veteran’s private treatment provider opines that the Veteran’s right knee condition is “service connected.” The private treatment provider also related that he did not have the Veteran’s chart for review and that the opinion is based on the Veteran’s reports of multiple service related injuries.  The August 2013 opinion further indicates that the private treatment provider believed that the Veteran was already service connected for her right knee.  Because the August 2013 statement from the private treatment provider is based on a history provided by the Veteran, which, as discussed above, lacks credibility, it amounts to no more than a medical opinion premised upon the unsubstantiated accounts of a claimant and likewise is of no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).
As the most probative evidence before the Board does not support a finding that the Veteran’s right knee condition, variously diagnosed as osteoarthritis and chondromalacia of the patella, began in service, within one year following separation, or is otherwise related to the service, the Board finds that the preponderance of the evidence is against a finding of service connection.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  The appeal is denied.
 
2. Entitlement to service connection for a left knee condition, to include arthritis.
The Veteran asserts that her left knee condition resulted from an in service fall injury.  She testified during the February 2018 hearing that her left knee has given her problems.
While the record evidence contains competent lay and medical evidence indicating that the Veteran has current left knee symptomatology which functionally impairs the Veteran, see, e.g., Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), and private medical evidence indicating x-ray evidence of left knee arthritis in August 2013, the preponderance of the evidence weighs against finding that a left knee disability began during service or is otherwise related to an injury in service.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
As discussed with the right knee, the service treatment records support an in service fall injury in May 1974, but they do not reflect that the Veteran complained of or was treated for any left knee symptoms in March 1975, or that she had any left knee symptoms that persisted beyond the isolated period of treatment in May 1974.  The report of medical examination conducted in June 1977, for the Veteran’s separation from service, show that her lower extremities were evaluated as normal, as was her other musculoskeletal system, and that no disorder of the knee attributable to any incident of service was found on examination.  Similarly, a statement of medical condition, which was signed by the Veteran, reflects that there had been no change in her medical condition since the last separation in June 1977. 
Here, the record contains no medical evidence indicating that the Veteran’s left knee condition began in service, became manifest within one year after service, or is otherwise related to her service.  The June 1977 separation examination shows normal clinical and physical profile findings with no noted defects or diagnoses.  
The post-service record shows no treatment for her lower left extremity since the Veteran’s separation from service other than VA medical treatment for left thigh pain, which is due to a twisting injury in August 2011.  Private and VA treatment records, dated between 1991 and 2012, show that the Veteran presented with no medical complaint and treatment specifically for a left knee condition.  An August 2013 private medical statement reflects x-ray evidence indicating left knee arthritis.  Significantly, however, none of these reports contain a medical opinion relating the Veteran’s current left knee disorder with her period of service or with any incident that occurred during service. 
The Veteran has provided lay evidence consisting of her hearing testimony in 2018 and statements from her family and friend dated in April and May of 2018.  With this lay evidence, the Veteran maintains that her left knee condition is related to an-inservice injury.  Lay evidence may be competent to establish medical etiology or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Although lay persons are competent to provide opinions on some medical issues, here causation of left knee arthritis falls outside of the realm of knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F,3d 1372, 1377 n.4 (Fed. Cir. 2007).  Although the Veteran and her family and friend are competent to describe her symptoms and their onset, their statements regarding the condition’s cause are of limited probative value because this determination involves a complex medical question.  Id.
As regard continuity of symptoms, the Board finds that the Veteran’s left knee disorder was properly afforded such consideration, as arthritis is one of the enumerated diseases in 38 C.F.R. § 3.309(a); Walker v. Skinseki,708 F.3d 1331 (2013).  As previously discussed above, the service treatment records and the post service medical records overall provide highly probative evidence against the Veteran’s claim that she had left knee symptoms that persisted beyond the isolated period of treatment in May 1974. 
As the probative evidence before the Board does not support a finding that the Veteran’s left knee condition began in service, within a year of separation from service, or is otherwise related to service, the preponderance of the evidence is against finding service connection.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  The appeal is denied.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Lin, Associate Counsel 

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