Citation Nr: 0810929 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 03-05 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for post operative residuals of left knee injury. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1968. This appeal came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from the VA Regional Office (RO) in Chicago, Illinois. By a decision dated in July 2007, the Board reopened the claim of service connection for a left knee disorder and remanded the case to the RO for further development. The matter is once one more before the Board for appropriate disposition. FINDING OF FACT There is competent medical evidence of record that a left knee disorder is reasonably of service onset. CONCLUSION OF LAW A left knee order was incurred in service. 38 U.S.C.A. § 1110 (West 2002 & Supp 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has imposed new duties on VA to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The Court has concluded that the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); See also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Law and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, there must be evidence of an etiological relationship between a current disability and active military service. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2007). Factual background and legal analysis The service medical records are silent for any complaints, findings or treatment relating to the left knee. Upon examination in September 1968 for release to inactive duty, the lower extremities were evaluated as normal and no pertinent defects were recorded. It appears, however, that the clinical records may be incomplete. The claims folder reflects that a number of attempts to retrieve them from various sources have been unsuccessful. The veteran initially filed a claim for service connection for left knee disorder in February 1970. On post service VA examination in March 1970, he provided history to the effect that while playing intramural football in the fall of 1967, he injured the left knee and that it had remained weak since that time. He related that he had recurring injuries to the knee as a result thereof, and that a civilian doctor had told him that surgery was indicated. Current examination of the knee disclosed symptoms that included marked laxity. Following examination, a diagnosis of internal derangement, left knee was rendered. In a private clinical narrative dated in September 1970, it was recorded that the veteran had been seen in February 1970 with a history of difficulty with the left knee of two years' duration. It was noted that the original injury had been of a twisting type with immediate pain over the medial joint that had persisted to date. The veteran underwent private arthrotomy of the left knee with medial mensiscectomy in September 1970. In a letter dated in December 1970, the appellant reiterated the above history of injury to the left knee and elaborated on the ensuing chronology. He related that he had sought treatment for the left knee in service and that an X-ray was performed at the naval base dispensary. He stated that nothing was found on X-ray and that he was told it was probably just a bad sprain. He said that he was given crutches and nothing further was done. The appellant stated that the knee kept being re-injured and he was found to have developed a torn cartilage whereupon immediate surgery was advised. He said that he had also obtained treatment for left knee symptoms at the Westside VA Hospital during that time frame. Private clinical records dated in May 1996 reflect continuing left knee symptoms diagnosed as severe degenerative joint disease. A number of lay statements dated in July 2005 were received in support of the veteran's claim attesting to knowledge of left knee injury in service and a symptomatic condition thereafter. The veteran was afforded a VA joints examination in September 2007, wherein it was noted that the claims folder was reviewed. A thorough background history was recited and reviewed. A comprehensive physical examination was performed showing findings that included varus deformity, flexion contracture, and a leg length discrepancy. X-rays were performed. Following examination, a diagnoses of severe degenerative joint disease of the knee joint with complete loss of medial joint space, subchondral cysts, osteophytes, and sclerosis consistent with degenerative joint disease, chondrocalcinosis of the lateral meniscus, calcification in the region of the medial collateral ligament suggestive of old tear and degenerative joint disease of the patellofemoral joint were rendered. The examiner stated that it was his opinion that the veteran's current left knee disability more likely than not originated in service. He opined that this was based on an extensive and thorough review of the claims folder, to include statements in support of the claim submitted on the appellant's behalf. It was found that those statements along with the consistency of the veteran's history, the physical examination and the natural progression of the condition supported his opinion. The Board has carefully reviewed the record which shows that although service medical records do not document a left knee injury, the proximity of the veteran's initial claim for such to service suggests that his account has merit. As noted previously, his complete service medical records do not appear to be available. The Board recognizes that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit- of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The appellant in this instance has provided a detailed history of treatment during active duty which has been consistent throughout the record. This was corroborated by the VA physician in September 2007 who also found that given the circumstances, it was more likely than not that left knee disability is of service onset. The Board thus resolves the benefit of the doubt in favor of the appellant by finding that post operative left knee injury was incurred in service. ORDER Service connection for a left knee disorder is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs