Citation Nr: 1300897 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-09 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for claimed bilateral knee disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for claimed right ankle disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1974 and had additional service in the Reserve. This matter comes before the Board of Veteran's Appeals (Board) on appeal from September 2004 and January 2005 decisions by the RO. In November 2008, a videoconference hearing was held before a Veterans Law Judge (VLJ). In January 2009, the Board granted service connection for a low back disorder and remanded the issues of service connection for a right ankle disorder, a bilateral knee condition, and bilateral leg radiculopathy. In January 2010, the RO granted service connection for bilateral leg radiculopathy. As this issue was resolved, it is no longer for consideration. In April 2010 and November 2011, the Board remanded the remaining issues for additional development. In October 2012, the Board notified the Veteran that the VLJ who conducted his hearing was no longer employed at the Board. He was offered the opportunity to testify at another hearing. The Veteran responded that he did not wish to appear at a hearing and wanted his case considered based on the evidence of record. Accordingly, the Board will proceed with the case. The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. The Veteran is shown to have served in the Republic of Vietnam as a combat engineer; his reports of multiple in-service bilateral knee and right ankle injuries are consistent with the circumstances of his service. 2. The Veteran is found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to bilateral knee and right ankle disorders since service. 3. The currently demonstrated bilateral knee and right ankle degenerative changes are shown as likely as not to be due to repetitive injuries sustained during the Veteran's period of active service including extended service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his bilateral knee disability manifested by degenerative changes is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. By extending the benefit of the doubt to the Veteran, his right ankle disability manifested by degenerative changes is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable action taken hereinbelow, a detailed explanation of how VA complied with VCAA is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Pertinent Law and Regulations In general, service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for certain chronic diseases, including arthritis, if manifested to a compensable degree within one year following discharge from active service. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); see 38 C.F.R. § 3.304(d). Although 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected, it does considerably lighten the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in or aggravated by combat service. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis In September 2004, the RO denied service connection for bilateral chondromalacia of the patella. In January 2005, the RO denied service connection for a right ankle inversion sprain. The Veteran disagreed with these decisions and subsequently perfected this appeal. A careful review of the service treatment records shows that, in September 1969, the Veteran was seen for an inversion-type injury of the right ankle after falling from a truck. A record dated a few days later indicated that he was still feeling a little pain and was given a supportive bandage. The records dated in April 1973 document the Veteran's complaints that, for three years, his knees had had a tendency to give way while walking in the cold. He was noted to have had multiple injuries while in Vietnam. His range of motion for the knees and right ankle was normal, and no abnormalities were found. On examination for separation in March 1974 and in connection with an examination for National Guard induction in July 1978, the Veteran's lower extremities were reported to be normal. The service records show that the Veteran served in the Republic of Vietnam from March 1968 to September 1969 and from June 1970 to April 1971. He participated in multiple campaigns. His DD Form 214 shows that his military occupational specialty was as a combat engineer, and his decorations include the Vietnam Service Medal and the Bronze Star Medal. The Veteran was also awarded the Parachute Badge. His overall service record, to include consideration of military occupational specialty and awards, tends to reflect participation in combat. On review, he is entitled to the application of 38 U.S.C.A. § 1154(b). In various statements and in his hearing testimony, the Veteran reported experiencing problems with his knees and right ankle during his Vietnam service and continuing to have symptoms thereafter. He reported having very physically demanding duties as a combat engineer, including jumping out of helicopters and trucks with full gear. Sometimes uneven terrain would cause a sprained ankle, and he would have to walk many miles carrying a lot of weight with the injury. He also had several parachute jumps. The Veteran is competent to discuss the circumstances of his service and his in-service injuries. See Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation). His statements appear consistent with his circumstances of service. At a VA examination in April 2004, the diagnoses included those of bilateral chondromalacia patellae and right ankle sprain by history, healed, without objective clinical evidence of residual instability or significant arthropathy. The examiner found no objective documentary, historical, clinical or radiographic evidence to suggest or support a causal relationship between the service injuries and current conditions of the knees and alleged ankle complaints. He further stated with respect to the claim of persistent symptoms that there was no evidence to suggest a nexus or chronicity extending back to service and that the more likely etiologies for current conditions included those of aging, being overweight, deconditioning, having nutritional and metabolic conditions, and having post-service occupations and/or injuries. On VA examination in October 2009, the Veteran reported having right ankle problems since Vietnam. He also reported having bilateral knee problems beginning on active duty. Following examination, diagnoses were those of normal right ankle joint; right knee medial meniscus posterior horn degenerative tear, mild right knee osteoarthritis/degenerative joint disease confirmed by MRI; and left knee posterior horn medial meniscus degenerative tear. The examiner found that the knee conditions were normal, age-related degenerative conditions and not due to or caused by the service-connected low back disability. The examiner further stated that the Veteran himself stated that they were due to injuries from Vietnam and not secondary to his back. On VA examination in July 2010, the examiner stated that there was no evidence on physical examination or x-ray study of any right ankle disability and that he could not give an opinion regarding a normal joint. However, the Board observes that an x-ray study of the right ankle showed heel spurs and that range of motion testing showed decreased plantar flexion. Regarding the knees, the examiner stated that the disability was less likely as not caused by or the result of in-service injuries including parachute jumps. The examiner stated that the meniscal tears were most consistent with degenerative tears, and not acute traumatic tears as would have happened if one was injured in a parachute jump. The service records did not show complaints of mechanical-type symptoms involving his knees so there was no evidence of these tears while on active duty. Further, there was no evidence that his knees were affected by parachute jumps as the degenerative changes were consistent with his age and the pattern of the disease was symmetric in all compartments and involved both knees, which was most consistent with degeneration. Typically, the post-traumatic arthritis occurred within 5-10 years after trauma, and the Veteran's arthritis had shown up 25-30 years after his parachute jumps. The Veteran most recently underwent a VA examination in December 2011. The diagnosis pertaining to the knees was that of patellofemoral arthritis. The examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service, injury, event or illness. The examiner noted that the first radiographic evidence of knee pathology was not until the December 2008 MRI and that the objective bilateral knee evidence had only occurred in the last three years. The examiner stated that the one encounter involving bilateral knee manifestations on active duty did not meet the standard of aggravation or exacerbation and that the examination of the knees was normal on active duty. He further stated that the evidence was not sequential and did not meet proximity of active duty to support nexus and/or current findings. The examiner indicated that the examination of the ankle was negative. As before, however, plantar flexion was noted to be decreased. Additionally, the x-ray studies showed mild degenerative change of each ankle with evidence of prior trauma and heel spurs. The examiner opined that the right ankle condition was not at least as likely as not due to service, including the parachute jumps performed and the right ankle inversion injury. In support of this statement, the examiner stated: There [was] no substantive medical evidence which suggest[ed] parachute landings and falls cause[d] the [V]eteran['s] ankle issue. There [was] evidence that there [were] inherent risk[s] to parachute landings and falls some acute and some chronic, but one must have a diagnosis of the event (PLF) causing a problem. Then one must have documented detail describing the characteristics of the injury. This [V]eteran['s] history offered and case file [was] silent for chronic right ankle problems from parachute landing and falls on active duty. He ha[d] a symmetric range of motion decrease and this is not one sided. The examiner also provided negative opinions regarding secondary service connection and aggravation for both the knees and the right ankle. In this case, there is medical evidence of record showing the presence of current bilateral knee and right ankle disabilities. Thus, service connection requires that the current disabilities be related to active service or events therein. See 38 C.F.R. § 3.303. As discussed, the VA opinions are negative and do not support the Veteran's claims. The Board acknowledges these opinions, but after careful consideration, finds them to be of limited probative value for the purpose of deciding this appeal. That is, they essentially ignore nature of the Veteran's duties and the documented circumstances of his service, including in the Republic of Vietnam, and significantly discount the Veteran's competent lay assertions regarding nature of the repetitive-type injuries suffered to his legs incident to duties during his extensive period of active service, as well as his statements regarding the continuity of his symptoms after service. For example, the April 2004 examiner explained that he found no evidence to suggest a nexus back to service. The July 2010 examiner indicated that the service records did not show complaints of mechanical-type symptoms involving his knees and that there was no evidence of meniscal tears while on active duty. The December 2011 examiner stated that the evidence regarding the knees was not "sequential" and history offered was silent for chronic right ankle problems. Significantly, on this record, the Veteran first is shown to have been rendered medical attention in service for complaints of knee problems of an extended duration and an clear injury to his right ankle, initially characterized as being due to fracture while on active duty. He also has reliably asserted having multiple other in-service injuries in connection with his service under combat conditions in the Republic of Vietnam. The Veteran's contentions are consistent with his service, and the Board finds no reason to doubt his credibility regard suffering repetitive-type trauma to his knees and right ankle during service. See 38 U.S.C.A. § 1154(b). Moreover, the Board finds that the Veteran has presented credible lay assertions sufficient to establish a continuity of symptomatology consistent having degenerative changes of the knees and the residuals of right ankle trauma since service. As such, in carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral degenerative changes of the knee and traumatic changes of the right ankle as likely as not are due to a pattern of joint degeneration due to injuries that were incurred in active service. Considering the hazardous and physically challenging duties during the Veteran's service including that in the Republic of Vietnam, and resolving all reasonable doubt in his favor, service connection for bilateral knee and right ankle degenerative changes is warranted. 38 C.F.R. § 3.102. ORDER Service connection for bilateral knee degenerative changes is granted. Service connection for right ankle degenerative changes is granted. ____________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs