Citation Nr: 0810187 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06 04 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for residuals of right knee injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty in the Army National Guard from July 1987 to November 1987, and he subsequently had periods of inactive duty training. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in December 2006 for hearings. An informal conference hearing was conducted in April 2007, and a videoconference hearing was conducted before the undersigned Veterans Law Judge in August 2007. At the August 2007 hearing, additional evidence was submitted along with a waiver of consideration by the agency of original jurisdiction; the evidence consisted of a buddy statement, VA radiology report, and VA outpatient treatment notes. The appellant's representative reported that all the appellant's VA treatment records had been associated with the claims folder. FINDING OF FACT The appellant sustained a right knee injury in April 1989 during inactive duty training with the National Guard; current findings for traumatic chondromalacia are attributable to right knee injury sustained during inactive duty training. CONCLUSION OF LAW Traumatic chondromalacia of the right knee is attributable to right knee injury sustained during inactive duty training. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the appellant in August 2003 essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. However, notice of the disability rating and effective date elements was not provided until February 2007, after the initial rating decision. This is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is no prejudice to the appellant in this timing error because the claim was subsequently readjudicated in April 2007 and VA sent the appellant a Supplemental Statement of the Case dated the same notifying him of the actions taken and evidence obtained or received. Also, the Board notes that, because the claim is granted, as discussed below, any defects in the content and timing of the VCAA notice are rendered moot. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). For any period of service in the National Guard and Army Reserve, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(22)-(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303. In this case, the appellant testified at a hearing in August 2007 that he injured his knee while attempting to jump over an artillery trail during National Guard annual training. A review of the evidence reflects that the appellant injured his right knee in during inactive duty training with the Oregon National Guard. Specifically, service medical records dated April 8, 1989, reflect a history of hitting the right knee on "runner of a [H]owitzer while jumping" and complaints of sever pain, discomfort, and an inability to walk. Examination showed broken skin with bleeding on anterior right patella, swelling around patella, and pain on palpation and movement of joint along with numbness on patella. The assessment was possible bruise on right patella or slight knee sprain. The knee was treated with ice pack and Ace bandage; he was to take off duty for the evening and reassessed after 4 hours rest. On follow-up 4 hours later, the appellant reported an inability to walk and pain in the right knee. Swelling had increased, but was localized to the right patella and knee. The examiner stated that he was unsure of severity so the appellant was evacuated via land ambulance to BAS. A final entry one hour later reflects that the appellant had a possible broken right patella and he was experiencing severe pain; he was evacuated to a medical facility for further evaluation and treatment. The knee was splinted. An April 8, 1989, treatment note from St Elizabeth Medical Center reflects that the appellant was diagnosed with a contusion of the right knee patella. Recommended treatment included a knee immobilizer and no field activity for 5 days. He was prescribed Tylenol #3. An individual sick slip dated April 9, 1989, reflects that the appellant was treated for swelling and contusion of the right knee at St. Elizabeth [Hospital]. A sworn statement dated April 9, 1989, from a witness reflects that the appellant injured his right knee when he attempted to jump over the trail of a howitzer, but instead tripped and landed on his knee, which struck the trail of the Howitzer. The appellant proceeded to complete the mission and then was seen by the medics. A sworn statement from the appellant reflects essentially the same. DA Form 2173, dated April 11, 1989, reflects that the appellant was on inactive duty training and that the injury was considered to have been incurred in line of duty. Reports of periodic examination dated October 1991 and April 1993 reflect normal clinical evaluation of the lower extremities. The report of medical history accompanying these examinations also reflects a statement of good health. The denied "Trick" or locked knee. The appellant filed a claim for VA compensation in July 2003 based on right knee injury in 1989-1990 during annual training. In June 2004, a VA examination was conducted. By history, the appellant injured his right knee when he fell against an artillery trail (a heavy metal bar). Patellofemoral pain disorder, right knee, superimposed on degenerative joint disease was diagnosed. A lay statement dated June 2005 from J.W. reflects that the appellant injured his right knee during training. VA treatment records dated since September 2006 reflect findings for polyarticular arthritis. An August 2007 x-ray study reflects minimal arthritic change of the right knee. In June 2007, a VA examination was conducted. By history, the appellant injured his right knee in 1989, hitting the knee cap on the edge of a Howitzer. He reported that the knee was braced for 4 weeks thereafter. Examination of the knees revealed degenerative changes, more pronounced in the left knee, and patellofemoral joint disease in both knees, more pronounced in the right knee. The assessment was degenerative joint disease of the right knee. The examiner reviewed the appellant medical records. The examiner opined that the current right knee condition is "neither due to, caused by or aggravated beyond normal progression as a result of the April 1989 R[right] knee contusion, bruise, or slight knee strain." An August 2007 VA treatment note reflects a history of hitting the right knee on a Howitzer in 1989. He reports right knee problems since that injury. X-ray showed degenerative disease with patellofemoral spurring, and lateral tracking right patella. The impression was right knee traumatic chondromalacia patella. In weighing the evidence of record, the Board concludes that the weight of the evidence supports service connection for traumatic chondromalacia of the right knee. Reliable evidence of record shows that the appellant sustained a right knee injury in April 1989 during inactive duty training, described as a contusion, bruise, knee strain, and possible broken patella. Furthermore, competent evidence of a current right knee disability has been presented. In June 2004, patellofemoral pain disorder, right knee, superimposed on degenerative joint disease was diagnosed; and, in June 2007, degenerative changes of the right knee were found along with findings for patellofemoral joint disease of the knee. Moreover, on recent VA treatment in August 2007, the examiner diagnosed traumatic chondromalacia of the right knee based on history of injury during inactive duty training and current examination findings. The examiner has related the current diagnosis to the in-service injury. Accordingly, service connection for traumatic chondromalacia is granted. The Board acknowledges the negative June 2007 VA medical opinion; however, the Board finds that it has diminished probative value since it was wholly predicated on the absence of documented complaints following the initial injury and did not address the etiology of the current clinical findings in the absence any intercurrent injury. As such, this opinion has reduced probative value. The Board notes that the credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). ORDER Service connection for traumatic chondromalacia of the right knee is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs