Citation Nr: 0810229 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-37 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Service connection for residuals of left 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 from January 1955 to January1958. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in September 2004 for further development. The development is complete and the case has been returned to the Board for disposition. In December 2004, a videoconference hearing was conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. The Board notes that, in December 2007, additional evidence was received at the Board without a waiver of consideration by the agency of original jurisdiction. In view of the favorable decision below, there is no prejudice or harm to the appellant; therefore, remand for consideration by the RO is not warranted. FINDINGS OF FACT 1. Form DD 214 and sworn testimony reflect that the appellant was a parachutist in service; complete service medical records are unavailable. 2. The appellant injured his left knee in service; a lay statement from a fellow serviceman reflects that a few men had sustained injuries during a jump that included the appellant and that he recalled seeing the appellant thereafter on crutches. 3. Private medical records show complaints of left knee giving way from 1986, a diagnosis for osteoarthritis in June 2000, and total left knee arthroplasty in July 2000. 4. Dr. P.S. opined in October 2002 that the appellant had degeneration of the left knee due to left knee injury sustained in service. CONCLUSION OF LAW Residuals of left knee injury were incurred in service. 38 U.S.C.A. §§ 1131, 1154(a) 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(d) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may 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). "[A] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). In each case where a veteran is seeking service-connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, service medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In this case, the Board acknowledges that, unfortunately, the appellant's complete service medical records could not be obtained from the National Personnel Records Center (NPRC), presumably because they were destroyed in the 1973 fire at that facility. Under the circumstances, the Board recognizes its heightened duty to explain its findings and conclusions and to consider the benefit of the doubt in cases where records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Dixon v. Derwinski, 3 Vet. App. 261 (1992). Sworn testimony from a videoconference hearing in December 2004 along with other statements from the appellant reflect a consistently reported history of left knee injury incurred in service during a parachute jump. The appellant's Form DD 214 along with an Airborne School Certificate corroborate that the appellant was a qualified parachutist. Furthermore, a "buddy" statement from R.M. reflects that he served in the 11th Airborne with the appellant and that he and others sustained injuries during a jump due to an overshot of the drop zone and weather conditions; R.M. noted that he recalled seeing the appellant walking with crutches after the jump for some time. In view of the above, and with due consideration of the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the appellant's statements that he incurred a left knee injury during a parachute jump are credible. Additional evidence of record includes private medical records dated since 1986. These records show complaints of the left knee giving way from 1986, a diagnosis for osteoarthritis in June 2000, and total left knee arthroplasty in July 2000. Competent evidence establishes the existence of a current disability. The evidence of record also includes an October 2002 medical opinion. Dr. P.S., the appellant's private physician, opined that the appellant had degeneration of the left knee due to left knee injury sustained in service. The physician noted that the appellant was a paratrooper 45 years earlier and had sustained a left knee injury during a jump. He further noted that the left knee degeneration, without evidence of right knee degeneration, suggested traumatic arthritis. Competent evidence has been presented establishing a relationship between the appellant's left knee disability and in-service injury. However, the Board is cognizant that there is also negative evidence of record. Weighing against the appellant's claim is report of service separation examination dated November 1957 showing normal clinical evaluation and the absence of documented post service treatment for the left knee from service discharge until roughly 1986. The appellant has explained that records of treatment between service discharge and 1986 were no longer available as his physician had died and another had retired. In the absence of a report of medical history accompanying the separation examination, the Board believes that the separation examination standing alone cannot negate the incurrence of the left knee injury; but rather, it merely shows that abnormal pathology was not shown at that time. With respect to the absence of post service treatment records until 1986, the Board finds the appellant's explanation reasonable in view of the lengthy period of time that had elapsed between service discharge and 1986, as well as, until his date of claim. Accordingly, in weighing the evidence of record, the Board concludes that the evidence supports service connection for residuals of left knee injury. Finally, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (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 or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. In view of the grant of benefits, the Board finds that any defect with respect to the content or timing of the VCAA notice requirement was harmless error. ORDER Service connection for residuals of left knee injury is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs