Citation Nr: 0717681 Decision Date: 06/13/07 Archive Date: 06/26/07 DOCKET NO. 05-09 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama ISSUES 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for residuals of meniscal tear, right knee. 2. Entitlement to service connection for residuals of meniscal tear, right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active duty service from February 1983 to December 1986, and from January 1991 to April 1991. He also had periods of inactive duty for training in the U.S. Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the veteran's request to reopen his claim for service connection for residuals of meniscal tear, right knee, on the grounds of no new and material evidence. In December 2006 the veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Montgomery, Alabama. The transcript of that hearing is of record. FINDINGS OF FACT 1. The February 2001 rating decision denying service connection for meniscal tear, right knee was not timely appealed. 2. An earnings statement first received by the RO in September 2002 constitutes new and material evidence. 3. The veteran did not sustain a meniscal tear to his right knee during a period of inactive duty for training. 4. The veteran does not have a pre-existing right knee condition. CONCLUSIONS OF LAW 1. The February 2001 rating decision denying service connection for meniscal tear, right knee is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104 (2006). 2. New and material evidence sufficient to reopen a previously denied claim for service connection for meniscal tear, right knee has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 3. A right knee meniscal tear was not incurred in or aggravated by active duty service. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and material evidence A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. If the claim is thus reopened, it will be reviewed on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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) (2006). In a rating decision dated in February 2001 the RO denied service connection for meniscal tear, right knee, on the grounds that the evidence did not show that the veteran had incurred an injury to his right knee during a period of inactive duty (weekend drill) training. A substantive appeal was not filed, and the decision became final. 38 C.F.R. § 3.104. In September 2002 the veteran requested that his claim be reopened. Evidence in support of this request included an itemized military (USMCR) pay statement showing payment for periods of inactive duty training in April and May 1997. This evidence is new since it was not of record at the time of the RO's February 2001 decision. It is also material because it relates to the veteran's military status; a fact necessary to substantiate the claim. The veteran's claim for service connection for a meniscal tear, right knee, must therefore be reopened. 38 C.F.R. § 3.156. II. Entitlement to service connection for residuals of meniscus tear, right knee The veteran maintains that he injured his right knee in May 1997 during a weekend drill in the Marine Corps Reserves. A military pay record confirms that he was on inactive duty for training on May 16th and May 17th, 1997; however, SMRs contain no complaints of or treatment for a right knee meniscal tear. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury or disease contracted in the line of duty while in active military service. 38 U.S.C.A. §, 1131; 38 C.F.R. §§ 3.303, 3.304. Active military, naval, and air service includes active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The veteran claims that he sustained a meniscal tear to his right knee while loading vehicles onto railcars during a period of inactive duty for training in May 1997. In support of his claim he submits buddy statements from several witnesses who claim to have witnessed the mishap. According to the veteran and his witnesses, the veteran was treated at the time by a medical Corpsman; however, the record contains no evidence of said. Indeed, the only evidence in service medical records (SMRs) of the Corpsman's involvement is a January 1998 memorandum from the Corpsman to the veteran instructing the veteran to get a letter from a civilian physician "at no cost to the government" in order to avoid being placed on "unauthorized absence" status. The Board also notes that none of the buddy statements include the date that the event occurred; not even the year. Moreover, despite lay accounts of a mishap involving the veteran's right knee and contemperoneous treatment therefor, the record contains no competent medical evidence that shows that the injury sustained at the time was a meniscal tear. Accordingly, the Board finds that the lay evidence fails to substantiate the veteran's claim that a right knee meniscal tear was inccurred in May 1977 during a period of active duty for training. Private medical records dating from July 1997 do confirm that the veteran sustained an injury to his right knee; however, in a medical report dated July 10, 1997, a private treating orthopædic physician advises that the veteran injured his knee one night in July while "running abruptly" to tend to a family crises. A treatment record dated in June 1998 from this same physician also informs that the veteran "has had significant problems while working as a locksmith." According to this physician, the veteran had apparently strained his knee, on multiple episodes, while moving "heavy safes" pursuant to his locksmith work. Suffice it to say, the record contains no competent medical opinion or treatment evidence which suggests that the veteran's knee injury was incurred during a period of active duty. Based on all of the foregoing, the Board finds that a right knee meniscal tear was not incurred during active service. 38 C.F.R. §§ 3.6, 3.303. In addition to service connection based on an injury incurred during active service, 38 C.F.R. § 3.303(a) also provides for service connection based on aggravation of an injury if such injury pre-existed service. According to the veteran's physician, the veteran's knee problems "could certainly be associated with the heavy activity that he has been involved with in the military such as loading of vehicles on railcars." He adds that meniscal injuries are particularly aggravated by "twisting, turning stress against resistance," such as might be encountered in the loading and anchoring of vehicles on railcars. Although this statement suggests that the veteran's right knee injury could have been aggravated by service, the record contains no evidence that that the veteran's right knee meniscal tear pre-existed service. Indeed, the veteran himself reports that the injury was incurred during service. The Board therefore finds that the veteran's right knee meniscal tear did not pre-exist service, and consequently was not aggravated by it. Id. The veteran argues that he should be accorded a compensation and pension (C&P) examination with regard to his right knee injury; however, the Board notes that he was previously scheduled but failed to show for multiple C&P examinations. In any event, absent proof of the incurrence during service of a right knee meniscal tear, the Board finds that a C&P examination is not warranted. 38 C.F.R. § 3.159(c)(4). The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 3.102. In correspondence dated in February, June, and August 2003, and in March, 2006, VA satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006). Although it is unclear whether the veteran was explicitly asked to provide "any evidence in [his] possession that pertains" to his claim, as a practical matter the Board finds that he has been notified of the need to provide such evidence because VA's correspondence informed him that additional information or evidence was needed to support his claim and asked that he should submit the information or evidence to VA. Because service connection is denied for residuals of meniscal tear, right knee, any question as to the appropriate disability rating or effective date is moot, and there can be no failure to notify prejudice to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect the claims decided herein. Service medical records, including those from the Marine Corps Reserves, have been obtained and associated with the claims file. Private medical records have also been obtained and incorporated in the record. In addition, the veteran was offered a C&P examination on multiple occasions, but failed to keep them. To the extent that VA has failed to fulfill any duty to notify or assist the veteran, the Board finds that error to be harmless. ORDER New and material evidence having been received to reopen a claim for entitlement to service connection for residuals of meniscal tear, right knee, the petition to reopen that claim is granted. Service connection for residuals of meniscal tear, right knee, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs