Citation Nr: 1300191 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-30 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran failed to report to a December 2008 hearing before a Decision Review Officer at the RO. In October 2010, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704(e). In November 2010, December 2011, and May 2012, the Board remanded this case for further evidentiary development. FINDINGS OF FACT 1. The Veteran sustained two left leg injuries during service. 2. The Veteran has competently and credibly reported experiencing intermittent left knee pain and instability since service. 3. The Veteran is currently diagnosed with left knee degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for left knee degenerative joint disease have been met. 38 U.S.C.A. §§ 1101, 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection The Veteran contends that he developed his current left knee disability as the result of his in-service left leg injuries. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In April 1967, the Veteran injured his left leg when he was hit by a car from the rear and carried on the car's hood for approximately 10 feet. The following day, he was assessed as evidencing tenderness in his left posterior leg. In June 1968, the Veteran sought treatment for swelling and pain in his left leg three days after sustaining a left leg injury. He was assessed with a muscular hematoma. The Veteran did not report experiencing any knee impairments when completing his separation medical history report, although he did affirm having experienced swollen or painful joints and leg cramps. No knee abnormalities were assessed during his separation medical examination. The Veteran reports experiencing intermittent left knee pain and instability continually since service. He reports that he did not report his left knee impairment during separation from service because he believed it would delay his separation. The Veteran reports receiving treatment for his intermittent knee pain relatively soon after service from his former private family practitioner; however, when attempting to obtain these treatment records to substantiate his claim, he was informed that his records had been destroyed. In November 2004, the Veteran was noted to have left knee crepitus, and in January 2006, he was diagnosed with left knee degenerative joint disease. A February 2011 VA examination confirmed the diagnosis of left knee degenerative joint disease. The examiner stated that the Veteran's left knee disability was unrelated to his in-service left leg injury and more likely due to aging and attrition. Likewise, a June 2012 VA examination confirmed a diagnosis of left knee degenerative joint disease. The examiner opined that the Veteran's left knee disability was unrelated to service and that it was more likely than not due to aging and obesity. The VA examination reports reflect that during his examinations, the Veteran reported experiencing intermittent left knee symptoms continually since service. Neither VA medical opinion considered this reported continuity of left knee symptoms since service. Rather, both VA examiners relied on the lack of left knee complaints or reported symptomatology on separation from service, and the 2011 VA examiner relied on the substantial gap between service and the first post-service left knee treatment record associated with the claims file. These opinions are therefore inadequate and are accorded little probative weight. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Barr, 21 Vet. App. at 311. The Veteran is competent to report experiencing intermitted left knee symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As the Veteran's reports have remained consistent over time and there is no evidence contradicting his report, his report of continuity of symptomatology is deemed credible. The Veteran's report that he sought left knee treatment relatively soon after service from his private family practitioner is deemed credible, as the routine destruction of older treatment records is a recognized practice. The Veteran's report regarding his motivation for failing to report his left knee symptoms on separation from service is deemed credible, as it is consistent with similar reports regarding the nature of the discharge process during the Vietnam Conflict. The Veteran's competent, credible reports are therefore accorded great probative value. Based on the documented in-service left leg injuries and the competent, credible reports of continuity of left knee symptoms since service, service connection for the Veteran's currently-diagnosed left knee disability is warranted. See 38 C.F.R. § 3.303(b), (d). ORDER Service connection for a left knee disability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs