Citation Nr: 1038502	
Decision Date: 10/14/10    Archive Date: 10/22/10

DOCKET NO.  07-34 803	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta Georgia


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a right 
knee disability, and if so, whether service connection is 
warranted.

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a left 
knee disability, and if so, whether service connection is 
warranted.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The Veteran had active service from July 26, 1972 to August 22, 
1972.
 
This matter comes before the Board of Veterans' Appeals (Board) 
from a rating decision of the Department of Veterans Affairs (VA) 
Regional Office (RO) in Atlanta, Georgia..  

The Veteran testified before the undersigned Veterans Law Judge 
at the RO in July 2010.  A transcript of his hearing has been 
associated with the claims file.

The issues of entitlement to service connection for right and 
left knee disabilities are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a August 1972 rating decision, the RO denied service 
connection for recurrent dislocation of the right patella; while 
the Veteran submitted a notice of disagreement and was issued a 
statement of the case, he did not perfect an appeal.

2.  In a June 1975 rating decision, the RO denied service 
connection for left knee strain; the Veteran did not appeal.

3.  In a July 2002 rating decision, the RO declined to reopen the 
Veteran's claims of entitlement to service connection for 
recurrent dislocation of the right patella and left knee strain; 
the Veteran did not appeal.

4.  The evidence received since the July 2002 rating decision is 
not cumulative or redundant of evidence previously of record, and 
relates to an unestablished fact necessary to substantiate the 
claims of entitlement to service connection for recurrent 
dislocation of the right patella and left knee strain.

CONCLUSIONS OF LAW

1.  The August 1972, June 1975, and July 2002 rating decisions 
are final.   38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 
3.160(d), 20.1100, 20.1104 (2009).

2.  New and material evidence has been received to reopen the 
claims of entitlement to service connection for right and left 
knee disabilities.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 
3.156 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 
duty to notify and assist claimants in substantiating a claim for 
VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2009).  As discussed below, the Board has determined 
that the criteria for reopening the claims of entitlement to 
service connection for right and left knee disabilities have been 
met.  Accordingly, no further notification or assistance pursuant 
to the VCAA is necessary.

Analysis

Generally, a claim which has been denied in an unappealed RO 
decision or an unappealed Board decision may not thereafter be 
reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 
2002).  The exception to this rule is 38 U.S.C.A. § 5108, which 
provides that if new and material evidence is presented or 
secured with respect to a claim which has been disallowed, the 
Secretary shall reopen the claim and review the former 
disposition of the claim.  

New evidence means existing evidence not previously submitted to 
agency decisionmakers.  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).  

For the purpose of establishing whether new and material evidence 
has been submitted, the credibility of the evidence, although not 
its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 
510, 513 (1992).

As noted, the RO denied service connection for recurrent 
dislocation of the right patella in August 1972.  It noted that 
the Veteran presented during service with a history of recurrent 
dislocation of the right patella, and there was no evidence of 
permanent aggravation beyond the normal progression of the 
disability.  In June 1975, the RO denied service connection for 
left knee strain.  It noted that prior to discharge, he presented 
with a report of having twisted his left knee and that the 
impression was slight strain of the left knee with possible 
subluxation.  The RO concluded that the claimed disability was 
not found on last examination.

The Veteran's service treatment records were associated with his 
claims file at the time of the 1972 and 1975 rating decisions.  
They show that, on enlistment examination in May 1972, the 
Veteran reported trick or locked knee.  He related that he had 
suffered an acute injury in the 10th grade, but denied current 
symptoms.  Physical examination revealed no defects of the lower 
extremities.  Notably, pes planus was noted in the summary of 
defects and diagnoses, but no mention was made of the Veteran's 
knees.  These records also indicate that in August 1972, 
recurrent dislocation of the right patella was assessed.  The 
provider indicated that the Veteran had a history that included a 
flexion-torsion injury and subsequent dislocation which the 
Veteran could relocate himself.  He noted that the Veteran was 
having painful motion with lateral tracking of the patella 
bilaterally.  He concluded that the condition existed prior to 
entry into service and had not been aggravated beyond normal 
progression.  He recommended discharge.

Also of record was a December 1972 statement by T.L.B., M.D. in 
which Dr. B. indicates that he had seen the Veteran at intervals 
since 1966 with various orthopedic problems.  He noted that the 
Veteran had never suffered any significant knee injury.  He 
stated that the Veteran was seen in February 1970 with a 
contusion of the right knee sustained in a fall while playing 
basketball but that he had no abnormal physical findings other 
than some local tenderness.  He indicated that the Veteran had no 
trouble with that knee following that incident until service when 
he developed bilateral recurrent dislocation of the knee caps.  
He concluded that the problem was not related to any previous 
injury.

At the time of the July 2002 rating decision, the record also 
included VA treatment records.  They show that the Veteran was 
fitted with knee braces in February 2001.  Post traumatic 
arthropathy is also noted.  Knee arthropathy is also noted in a 
June 2002 outpatient record.

The RO's July 2002 decision does not provide a great deal of 
insight into the basis for its conclusion that new and material 
evidence had not been submitted to reopen the Veteran's claims.  
Specifically, it indicated that while a right patella condition 
was noted in VA treatment records and that they also showed a 
left knee condition, the evidence did not bear directly and 
substantially on the issue of service connection.    

The records added to the file since the July 2002 decision 
include additional VA treatment records.  X-rays in March 2003 
revealed evidence of previous surgery and mild to moderate 
degenerative narrowing of the joint spaces.  An X-ray report 
dated in September 2003 indicates that there was marked narrowing 
of the medial joint compartments with varus deformity.  The 
radiologist indicated that there was irregularity in the region 
of the tibial tuberosities that might be postoperative and that 
the surgery might have been patella tendon repairs.  

Also added to the record is an August 2002 statement by the 
Veteran's mother.  She indicated that upon her son's return from 
service she took him to Dr. Brown.  She stated that a tendon 
transfer was performed on both knees and that the Veteran 
underwent months of rehabilitation.  

Finally, new evidence since the July 2002 decision includes the 
Veteran's July 2010 testimony.  He described an injury to his 
right knee during basic training  and stated that he was placed 
on medical hold.  He indicated that while he was in a cylinder 
cast on the right, he injured his left knee ascending stairs at 
his barracks.  He denied having had any knee problems prior to 
service.  He noted that he had undergone three surgeries on his 
knees.  

Here, the RO denied service connection for the right knee 
disability because there was no evidence of aggravation of a 
preexisting disability.  Evidence submitted since the most recent 
final denial includes that which suggests that there was 
aggravation beyond normal progression of the disability.  
Specifically, there is an indication by the Veteran's mother that 
he underwent surgery shortly after his discharge from service.  

The RO denied service connection for a left knee disability, in 
part, because there was no evidence of a disability.  However, 
evidence added to the file includes that which shows clinical 
findings referable to the Veteran's left knee.  Specifically, 
they show degenerative changes and suggest previous tendon repair 
surgery.  

In summary, the evidence added to the record since the previous 
final denials relates to unestablished facts necessary to 
substantiate the claims of entitlement to service connection for 
the claimed right and left knee disabilities.  As such, these 
claims may be reopened.
	 

ORDER

New and material evidence having been submitted, the claims of 
entitlement to service connection for right and left knee 
disabilities are reopened; to this extent only, the appeal is 
granted.


REMAND

As discussed, the Veteran was discharged from service due to 
recurrent dislocation of the patellae, which was found to have 
existed prior to service entry.  He maintains that he was 
asymptomatic prior to service, and had no symptoms referable to 
his knees until basic training.  He also maintains that he 
suffered injuries to both knees during service.

Every Veteran shall be taken to have been in sound condition when 
examined, accepted, and enrolled for service, except as to 
defects, infirmities, or disorders noted at the time of the 
examination, acceptance, and enrollment, or where clear and 
unmistakable evidence demonstrates that the injury or disease 
existed before acceptance and enrollment and was not aggravated 
by such service.  38 U.S.C.A. § 1111.  History provided by the 
Veteran of the preservice existence of conditions recorded at the 
time of the entrance examination does not, in itself, constitute 
a notation of a preexisting condition.  38 C.F.R. §§ 3.304(b)(1); 
Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 
Vet. App. 238, 246 (1995).  To rebut the presumption of sound 
condition under section 1111 of the statute for disorders not 
noted on the entrance or enlistment examination, VA must show by 
clear and unmistakable evidence both that the disease or injury 
existed prior to service and that the disease or injury was not 
aggravated by service.  VAOPGCPREC 3-2003 (July 16, 2003).

Clear and unmistakable evidence is a more formidable evidentiary 
burden than the preponderance of the evidence standard.  See 
Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that 
"clear and convincing" burden of proof, while a higher standard 
than a preponderance of the evidence, is a lower burden to 
satisfy than clear and unmistakable evidence).  It is an 
"onerous" evidentiary standard, requiring that the no- 
aggravation result be "undebatable."  Cotant v. West, 17 Vet. 
App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 
334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 
(1991)).  Concerning clear and unmistakable evidence that the 
disease or injury was not aggravated by service, the second step 
necessary to rebut the presumption of soundness, a lack of 
aggravation may be shown by establishing that there was no 
increase in disability during service or that any increase in 
disability was due to the natural progress of the preexisting 
condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 
2004); 38 U.S.C.A. § 1153.

In this case, there is evidence both for and against the 
proposition that the Veteran's knee disabilities preexisted 
service, and if so, whether they were aggravated thereby.  The 
Board therefore finds that an examination is warranted for a 
medical determination as to whether there is clear and 
unmistakable evidence that the recurrent knee dislocation 
identified in service did in fact preexist service, and if so 
whether there is clear and unmistakable evidence that the 
disability was not aggravated by service.  

Finally, the record indicates the Veteran's report that he is in 
receipt of Social Security Administration (SSA) disability 
benefits and that one basis for his disability benefits is his 
knees.  Given that the Veteran has reported receipt of SSA 
disability benefits based on his knee disabilities, the Board 
finds that a remand for such records is warranted.  Murincsak v. 
Derwinski, 2 Vet. App. 363 (1992).  Accordingly, on remand, the 
RO/AMC must contact SSA and obtain the Veteran's complete SSA 
records, including any administrative decision(s) on his 
application for SSA disability benefits and all underlying 
medical records.

In light of the above discussion, the case is REMANDED for the 
following action:

1.  Contact the SSA and request a copy of the 
Veteran's complete SSA disability benefits 
file, including any administrative 
decision(s) on the Veteran's application for 
SSA disability benefits and all of the 
underlying medical records.  A copy of any 
response(s) from SSA, to include a negative 
reply, should also be associated with the 
claims file.

2.  Schedule the Veteran for a VA examination 
of his bilateral knee disabilities.  All 
necessary testing should be carried out in 
conjunction with this examination, the 
results of which should be reported in 
detail. The claims file and a copy of this 
remand should be provided to the examiner for 
review.  The examiner should also elicit a 
complete history from the Veteran.

Based upon the examination results and the 
review of the claims folders, the examiner 
should answer the following questions with 
respect to each currently present knee 
disability.

Is there evidence that the disorder clearly 
and unmistakably existed prior to the 
Veteran's entrance onto active duty?

With respect to any such disorder which the 
examiner believes existed prior to the 
Veteran's entrance onto active duty, did the 
disorder clearly and unmistakably undergo no 
chronic increase in severity during or as a 
result of service?

With respect to any currently present knee 
disability which the examiner believes was 
not present prior to military service, is it 
at least as likely as not that the disorder 
is etiologically related to the Veteran's 
military service?

The complete rationale for all conclusions 
reached should be fully discussed in the 
examination report.

3.  The Veteran is hereby notified that it is 
his responsibility to report for any 
examination, and to cooperate in the 
development of the claim.  The consequences 
for failure to report for a VA examination 
without good cause may include denial of the 
claim.  38 C.F.R. §§ 3.158, 3.655.

4.  Readjudicate the Veteran's claims, with 
application of all appropriate laws, 
regulations, and case law, and consideration 
of any additional information obtained as a 
result of this remand.  If the decision 
remains adverse to the Veteran, he and his 
representative should be furnished a 
supplemental statement of the case and 
afforded an appropriate period of time within 
which to respond thereto.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).





____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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