Citation Nr: 0809826 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-15 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for arthritis of the right knee, to include as secondary to service-connected gout. ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran served on active duty from December 1973 to December 1993. This matter comes before the Board of Veterans' Appeals (the Board) on appeal of a March 2004 rating decision of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO) that denied the veteran's claim of entitlement to service connection for arthritis of the right knee. FINDINGS OF FACT The probative and competent evidence of record establishes that the veteran's arthritis of the right knee cannot satisfactorily be dissociated from active service. CONCLUSION OF LAW Arthritis of the right knee was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112(a)(4), 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. Legal Criteria In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for arthritis may be presumed if it became manifest to a degree of 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The veteran claims that he has arthritis of the right knee that was either caused by the rigorous duties that he had to perform over his 20 years of active service, or has been aggravated by his service-connected gout. Applying the Hickson analysis, the initial question is whether there is evidence of the current claimed arthritis of the right knee. Significantly, post-service medical records include the report of an October 1999 x-ray study and November 1999 Magnetic Resonance Imaging (MRI) study that revealed severe osteoarthritis of the right knee particularly within the lateral compartment. More recent medical records include the report of a January 2001 VA orthopedic examination that included the diagnoses of severe osteoarthrosis of the right knee with severe tricompartmental degenerative joint disease; degenerative lateral meniscus with degenerative tear on the posterior horn, right knee; early degenerative changes in the medial meniscus; effusion of the right knee joint; and popliteal cyst. The Hickson element (1) has therefore been satisfied as to the claimed disability. With respect to Hickson element (2), the veteran has provided credible statements in the course of this appeal and in the context of the January 2001 VA examination as to his activities in service. Specifically, he has stated that these activities included frequent walking, and frequent climbing on extended ladders and extended steel stairs. These tasks were described by the physician who conducted the January 2001 VA examination as "wear and tear" which can equate to the requisite in-service injury. Thus, Hickson element (2) has been satisfied as to this disability. The final question for resolution is whether there is medical evidence of a nexus between the veteran's in-service injury and the currently diagnosed arthritis of the right knee in satisfaction of Hickson element (3). The question then is whether the evidence is at least in equipoise as to whether the veteran has right knee arthritis that is related to service. In January 2001, the veteran underwent VA orthopedic examination that resulted in the diagnoses as noted above of severe osteoarthrosis of the right knee with severe tricompartmental degenerative joint disease, and other related right knee pathology. Although the claims file was not initially made available to the examiner in conjunction with the examination, in May 2001 the VA physician who conducted the January 2001 examination was provided an opportunity to review the veteran's claims file and prepare an addendum to the January 2001 examination report. Following examination and a complete review of the veteran's claims file, the VA examiner concluded that the diagnoses of severe osteoarthritis of the right knee is likely related to military service. The examiner explained that the veteran's long duration of 20 years of active task involving frequent walking, frequent climbing on ladders and steel stairs, including ICBM task underground involving up and down 3 story high flights of steel stairs appeared to be the veteran's dominant occupational factor as contributing and/or causing his degenerative joint disease as compared to his civilian job. The physician noted that there was no history of acute traumatic injury, and that the veteran's case appeared to be a wear and tear issue. The VA examiner further noted that gout has been diagnosed and is symptomatic, and opined that the right knee inflammatory arthritis diagnosed in 1999 "likely could be part of gouty arthritis." The Board concludes that the January 2001 VA examination report and the May 2001 addendum to that report serves as medical evidence of a nexus between the veteran's in-service injury and the currently diagnosed arthritis of the right knee in satisfaction of Hickson element (3). Essentially, the probative and competent evidence of record establishes that the veteran's arthritis of the right knee cannot satisfactorily be dissociated from active service. Thus, the Board concludes that the claim for service connection for arthritis of the right knee is supported by the evidentiary record thereby warranting entitlement to a grant of service connection. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for arthritis of the right knee is granted, subject to the regulations governing the payment of VA monetary benefits. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs