Citation Nr: 1234910 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 08-09 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a disability of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served from June 1956 to March 1959. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. In April 2011, the Board remanded the claim for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's right knee disability is related to his period of active service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right knee disability have been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R § 3.303 (2010). Service connection for some disorders, including arthritis, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). In determining whether service connection is warranted for any disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board observes that, while the RO has requested and obtained copies of two morning reports, the Veteran's service treatment records and service personnel records appear to be outstanding. Indeed, only copies of morning reports dated in August 1958 and October 1958 have been associated with his claims folder. The National Personnel Records Center has indicated that the Veteran's service records are presumed destroyed in a 1973 fire at the National Personnel Records Center. When a Veteran's records have been determined to have been destroyed, or are missing, VA has an obligation to search for alternative records that might support the case. Cuevas v. Principi, 3 Vet. App. 542 (1992). While VA's applicable laws and regulations do not lower the legal standard for proving a claim, they increase the Board's obligation to evaluate and discuss all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service; both of these inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). In this case, VA made multiple attempts to secure the Veteran's service treatment records from a variety of sources, including from the Veteran himself. Specifically, the RO sent January 2007 and April 2009 correspondence requesting that the Veteran submit all service records in his possession and other pertinent evidence in support of his claim. Additionally, in August 2011, VA contacted the Veteran directly via telephone to request any additional records in his possession. In response to those requests for information, the Veteran indicated that he did not have any service records in his possession, and was duly informed of the unavailability of additional records. In addition, pursuant to the Board's April 2011 remand instructions, VA made further attempts to obtain service records directly from Madigan Army Medical Center and All Army Sports. However, all efforts returned negative responses. No other alternative sources of records have been identified. The RO has issued several formal findings of fact with respect to the unavailability of the Veteran's service records. Accordingly, the Board finds that further efforts to obtain outstanding service records are unnecessary, particularly in light of its decision to grant service connection for a right knee disability. The Board's decision represents a complete grant of the benefits sought on appeal. Thus, the Veteran is not prejudiced by the Board's adjudication of his claim. Moreover, any additional delay in adjudication at the Board level would not benefit the Veteran and would unnecessarily delay and burden agency resources. Sondel v. West, 13 Vet. App. 213 (1999). The Veteran, in written statements and testimony before the Board, contends that his current right knee disability is related to a right knee injury that he incurred during service. Specifically, he asserts that, while playing football with the post football team in 1958 as part of his regular duties, he tore ligaments in his right knee and was subsequently hospitalized and casted from his right ankle to his right thigh. He further contends that, after the cast was removed, he underwent physical therapy and was released only after he was able to walk on his own. Following his release, he reports that he was transferred to another unit with headquarters, where he performed basic duties around the base, such as cleaning. He asserts that he took over the counter medications for his right knee symptoms following service until 1996, at which time he sought medical attention for worsening symptoms. The Veteran is competent to state that he injured his right knee while playing football during service, which is capable of lay observation and of which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, there is nothing in the record that undermines the credibility of his assertions in that regard. Caluza v. Brown, 7 Vet. App. 498 (1995). On the contrary, available morning reports show that in August 1958, the Veteran was transferred to a new unit, which tends to support and lend credibility to the Veteran's claim that he sustained a right knee injury in service, subsequent to which he was transferred and assigned different duties. Additionally, during post-service medical treatment in 1996, years prior to filing a claim for benefits, the Veteran reported sustaining a right knee injury in 1959. Accordingly, as the Veteran's account of an in-service right knee injury is consistent with his earlier statements and supported by the only available service records, it is deemed credible. Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, the Board concedes that the Veteran sustained a right knee injury in service. However, as stated, no service treatment or personnel records other than the morning reports have been associated with the claims file. Therefore, the Board is unable to find that chronicity in service is established, and therefore, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection. 38 C.F.R. § 3.303(b) (2011). Post-service medical records show that, in February 1996, the Veteran sought VA treatment for right knee complaints of swelling and pain. He reported that he tore cartilage in his right knee in 1959 and had experienced pain on and off since that time. He also reported occasional swelling and indicated that, ever since the injury, he experienced difficulty fully extending the knee. X-ray suggested fluid in the knee and mild ostreoarthritic changes. An assessment was made of status post trauma to the knee, and the Veteran was referred to the orthopedic clinic. During his March 1996 VA orthopedic clinic appointment, the Veteran again reported a history of a knee injury in 1959 and indicated that he was treated with casting. He complained of increasing pain over the years and, after raking leaves the week before, he experienced swelling. He also complained of laxity and giving out of the right knee. Physical examination revealed full extension with pain and full flexion. There was also positive patellar grind. No assessment from that date of service is available, as it appears that the record is incomplete. Thereafter, VA medical records dated from April 2006 to June 2011 generally show periodic complaints related to the right knee. Those records show that the Veteran consistently reported an onset of right knee problems in the 1950s during service, during which time he sustained an injury with a long recovery time, described as two months in the hospital. X-rays showed osteoarthritis, and diagnoses included osteoarthritis, chronic injury with overlying degenerative disease, traumatic arthritis, and gonarthrosis. The Veteran was prescribed a knee brace and pain medication. In accordance with the Board's April 2011 remand, the Veteran was afforded a VA examination in May 2011 in which he described a right knee injury sustained while playing football in service. The Veteran reported that, as a result of being tackled, he tore cartilage/ligaments and was placed in a cast for several weeks. He indicated that he stayed in the hospital for one-and-a-half months and, upon discharge, was sent to a different unit where he performed light duty. The Veteran indicated that his right knee never completely recovered, and he described the course of his disability since onset as intermittent with remissions. He reported seeking treatment from the VA when he was older, and his current symptoms including a popping sound when walking, pain, swelling, and an intermittent nagging pain. He indicated that he sometimes experienced symptoms every week, but could also go months without symptoms. Clinical examination revealed a normal gait, and crepitus and tenderness of the right knee. Range of motion testing revealed full extension and flexion to 115 degrees. X-rays showed bilateral chondrocalcinosis and joint space narrowing, and minimal suprapatellar effusion on the right, indicative of mild degenerative changes. Based on the results of the VA examination and a review of the pertinent evidence of record, the VA examiner diagnosed degenerative joint disease of the right knee and determined that the Veteran's right knee disability was at least as likely as not a result of a right knee injury from playing football during service. As a rationale for that opinion, the VA examiner indicated that the Veteran's current symptoms, examination, and x-ray findings were consistent with his reported history of a knee injury to the ligaments while in service. Moreover, the examiner found probative the service records (morning reports) showing a change in station, and the fact that the Veteran experienced symptoms only in one knee, which would suggest prior injury, as opposed to in both knees, which would suggest symptoms due to the aging process. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. The probative value of a medical opinion is generally based on the scope of the examination or review, and the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds that the May 2011 VA examiner's opinion, indicating that the Veteran's current right knee disability resulted from a right knee injury in service, is both probative and persuasive. The VA examiner's opinion was based on a detailed physical examination of the Veteran and a review of his claims folder. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Additionally, the Board considers it significant that the VA examiner's opinion was supported by a rationale that took into account the lay history provided by the Veteran. Sklar v. Brown, 5 Vet. App. 140 (1993). Moreover, there are no contrary medical findings of record. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's right knee disability was incurred in service. The May 2011 VA examiner's opinion, which the Board deems probative, expressly relates the Veteran's right knee disability to his service. That positive nexus opinion corroborates the Veteran's own written statements and testimony with respect to having sustained a right knee injury in service and experiencing right knee symptoms ever since. The Veteran is competent to report an in-service injury and ensuing symptoms, such as right knee pain and swelling, which are capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Moreover, the Board considers the Veteran's statements to be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). In particular, the Board finds probative and persuasive the Veteran's February 1996 and March 1996 reports of right knee pain and swelling ever since a right knee injury in 1959, as those statements were made in furtherance of treatment and not in conjunction with a claim for benefits. In this regard, the Veteran did not file a claim for benefits until May 2006, nearly 10 years after those statements were made. Further, the Veteran's credible account of intermittent right knee pain and swelling ever since a right knee injury in service suggests a continuity of symptomatology. That lends additional probative weight in favor of his claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board recognizes that the Veteran's account of an in-service right knee injury is not entirely substantiated by the available morning reports. Nevertheless, where, as here, the Veteran has provided lay evidence that is both competent and credible, the absence of contemporaneous medical documentation in his service records does not automatically preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Rather, in such instances, further evaluation as to the etiology of the claimed disability is needed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, such an evaluation has been provided and has resulted in a VA medical opinion that is wholly favorable to the Veteran. Based on the foregoing, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's service connection claim. In a case, such as this, where the majority of Veteran's service treatment records are missing, VA has a heightened duty to resolve reasonable doubt in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992). Accordingly, resolving all reasonable doubt in his favor, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right knee disability is granted. ____________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs