Citation Nr: 0814627 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-03 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had over 22 years of active service concluding in December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA) and a November 2005 rating decision of the Huntington, West Virginia RO which denied entitlement to service connection for a left knee strain and a status post right knee strain. During the pendency of this appeal the veteran's claims file was transferred to the jurisdiction of the Boston, Massachusetts Regional Office which has certified the case for appellate review. In December 2007, the veteran attended a hearing at the RO before the undersigned. The transcript of the hearing is associated with the claims file. The Board notes that the veteran's claim for entitlement to service connection for bilateral knee pain was denied in a November 2004 rating decision. The veteran did not file a notice of disagreement (NOD) before the expiration of the 1- year time limit in which to file an NOD. The prior final denial in November 2004 was based on bilateral knee pain. The current claims on appeal concerns diagnoses of torn menisci that were not considered in the November 2004 rating decision. Bilateral knee pain and torn menisci are two disabilities that are listed separately and are different for purposes of VA adjudication. In Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In view of Boggs, the Board finds that the claims of service connection for a left knee disability and a right knee disability were not previously adjudicated in a prior final denial, as that denial addressed a different disability, and should be addressed on a de novo basis. These claims will thus be adjudicated on its merits, rather than as an application to reopen. FINDINGS OF FACT 1. The veteran has a current left knee disability that is causally related to service. 2. The veteran has a current right knee disability that is causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are met. 38 U.S.C.A. §§ 1110, 1112, 1154 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. The criteria for service connection for a right knee disability are met. 38 U.S.C.A. §§ 1110, 1112, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the veteran in substantiating his claims. Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service treatment records show that in April 1989 the veteran presented with complaints of a left knee injury as a result of playing soccer. His left knee was swollen and tender around the joint area. In November 1989 the veteran presented with complaints of a right knee injury while running three weeks earlier. In June 2003 the veteran presented with a long history of bilateral knee pain. The diagnosis was chronic bilateral knee pain. In September 2003 the veteran again presented with a long history of bilateral knee pain. The veteran reported that his knees clicked when he walked up and down stairs. The diagnosis was osteoarthritis and synovitis. A November 2003 X-ray of the knees demonstrated normal knees as there was no evidence of traumatic, arthritic, inflammatory or neoplastic change about the knee. The veteran submitted a claim for service connection for knee disabilities in April 2004. In October 2005 the veteran underwent a VA examination. He reported that he had an injury to his left knee while playing soccer in 1989. He continued to have pain of his left knee, mostly when he climbed stairs. He had only mild occasional pain of his right knee. X-rays revealed slight narrowing of the medial compartment of the knees. The diagnoses were residuals, chronic left knee pain, status post left knee strain; and status post right knee strain with chronic occasional mild pain. A magnetic resonance imaging study (MRI) of the veteran's knees in November 2006 demonstrated horizontal tears involving the bodies of the medial and lateral menisci. A November 2007 progress note from St. Elizabeth's Health Care also states that MRI's demonstrated medial meniscus tears of both the right and left knee. At his December 2007 hearing, the veteran testified that he injured his knees in service and there had been pain ever since. Analysis The record indisputably documents a current bilateral knee disability as MRI's have shown medial meniscus tears of both the right and left knee and the VA examiner has diagnose residuals of right and left knee strains. The service treatment records are significant as they show treatment for knee injuries and complaints on multiple occasions. Additionally, in September 2003 the veteran had a diagnosis of synovitis. Therefore, the element of an in- service injury is satisfied. The remaining question is whether the current right and left knee disabilities are the result of an injury or disability while in service. The October 2005 VA examiner noted that the veteran had residuals, chronic left knee pain, status post left knee strain and status post right knee strain with chronic occasional mild pain. The only sprains considered by the examiner were the veteran's documented in service injuries. The October 2005 VA examiner's opinion therefore provides competent evidence of a link between the veteran's current right and left knee disabilities and his injuries in service. The October 2005 VA examiner provides the only competent medical opinion as to the relationship between the veteran's current and left knee disabilities and service. The veteran has also reported a continuity of symptomatology. Resolving reasonable doubt in the veteran's favor, the evidence shows knee injuries to both is left and right knee in service, continued left and right knee disabilities and a relationship between the current disabilities and service. Accordingly, entitlement to service connection is established. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a left knee disability, namely residuals of a left knee strain with medial meniscus tears, is granted. Entitlement to service connection for a right knee disability, namely residuals of a right knee strain with medial meniscus tear, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs