Citation Nr: 1134530 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 08-34 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May to July 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing at the RO in Waco, Texas in February 2011. This transcript has been associated with the file. Also in February 2011, the Veteran submitted additional evidence. However, the Veteran and her representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case. See 38 C.F.R. § 20.1304(c)(2010). FINDING OF FACT The Veteran's right knee disability is related to service. CONCLUSION OF LAW A right knee disability was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a right knee disability the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Court has indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. See Crowe v. Brown, 7 Vet. App. 238 (1994). The Court held that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1); Crowe, supra. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3- 2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2010); Wagner, supra. If this burden is met, then the veteran is not entitled to service connection benefits. Wagner at 1096. The Veteran contends that she injured her right knee while on active duty and was discharged due to this disability. The Board notes that the Veteran was afforded a medical examination at entrance to service in September 1984. At this examination there were no defects noted for the Veteran's lower extremities, with the exception of swelling and pain of her right ankle. On her Report of Medical History the Veteran reported that she had pain in her right knee following a basketball injury a few weeks earlier. A May 1985 service treatment record indicated the Veteran was complaining of right knee pain after she injured her knee the previous day. There was moderate swelling and mild tenderness noted. A June 1985 physical board profile determined the Veteran had an anterior cruciate ligament (ACL) deficiency that existed prior to service. She was put on a temporary limited profile. A later June 1985 service treatment record noted that the Veteran's right knee remained swollen and there was moderate effusion. A separate record from the same day noted the Veteran had injured her right knee prior to service when she was playing basketball and her knee gave out. The examiner diagnosed her with an ACL injury that had existed prior to service. The Board acknowledges that when the Veteran entered service she stated on her September 1984 Report of Medical History that she had pain in her right knee from playing basketball a few weeks earlier. However, as previously noted, on physical examination, her lower extremities were deemed normal. Furthermore, this notation of a prior medical history does not equate to a notation of disability on entrance. As stated above, the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). As previously discussed, on physical examination, her right knee was deemed normal. Thus, she is presumed to have been in sound condition at service entrance. As such, service connection will be considered on the basis of whether or not a right knee disability was incurred, rather than aggravated, in service. The Veteran is presumed sound on entrance. As noted above, during her short time in service, she was treated on a number of occasions for right knee issues. The Veteran continues to experience significant right knee problems. Given the credible evidence of continuity of symptomatology and a positive medical opinion linking the Veteran's right knee problems to service, as discussed below, the Board finds that the Veteran's current right knee problems had their origin in service. A June 1994 private treatment record noted that the Veteran had torn her ACL and also suffered from a lateral meniscus tear. The Veteran ultimately decided to undergo an ACL reconstruction. In a February 2009 statement the Veteran's private physician stated that he had reviewed her service treatment records. Following this review, the physician offered an opinion in June 2009 that the Veteran's right knee disability was related to service. He indicated the Veteran was diagnosed with a likely lateral ligamentous injury and that post service she underwent a right knee open ligament reconstruction. His final opinion was that it was highly probable that the Veteran's right knee disability was related to service. The Board acknowledges the statements from the Veteran's friend and family which stated that she did not have a knee injury prior to joining the military, but that she suffered from one after she separated in July 1985. See e.g., January 2011 statement. Also at her February 2011 Board hearing the Veteran testified that prior to entering service she had seen a doctor for right knee pain, but there was no diagnosis given and x-rays showed no abnormalities. She also testified she suffered from pain and swelling in her right knee during service and was put on light duty and that she was eventually discharged due to her right knee disability. She further testified that she felt her knee give out on her while working for FedEx in the 1990's. See also June 1994 private treatment record. She indicated that while she was not currently being treated for her knee disability, she still suffered from pain and inflammation and required the use of a knee brace. The Board notes a private treatment record from February 2011 which indicated the Veteran had a prior right knee ACL reconstruction after an in-service injury. At this appointment the Veteran was also noted to be suffering from severe lateral compartment degenerative joint disease. In sum, as there is corroborative evidence that the Veteran currently suffers from a right knee disability and there is a competent medical opinion linking her right knee disability to service, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of service connection for a right knee disability is granted. ORDER Entitlement to service connection for a right knee disability is granted. ____________________________________________ J.K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs