Citation Nr: 1301569 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-28 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disability, to include arthritis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to February 1993. He also had Army National Guard service from April 1995 to July 2001. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2012, the appellant and his sister testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of this hearing has been associated with his claims file. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's right knee disability, to include arthritis, is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, a right knee disability, to include arthritis, was incurred in service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2001 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or active duty for training, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6 (2012); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Service connection may also be warranted 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). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis Hickson element (1), current disability, has been met. The medical evidence shows diagnoses of right knee degenerative joint disease and internal derangement of the right anterior cruciate ligament and medial and lateral menisci. With respect to Hickson element (2), the Veteran's service treatment records show repeated right knee treatment from 1980 to 1987. The diagnoses were sprain, tendonitis, and chondromalacia patellae. Turning to Hickson element (3), medical nexus, there is conflicting medical nexus evidence. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The Court has held that factors for consideration in assessing the medical competence to render an opinion as to medical causation include specific expertise in the relevant specialty. See Black v. Brown, 10 Vet. App. 279, 284 (1997). In a January 2010 statement, Dr. Johnson noted that he had reviewed the service treatment records. That doctor indicated that the Veteran developed swelling, locking, popping, and giving out of his right knee from 1980 to 1987, but it does not appear that it was appreciated that he had a serious injury at that time. The doctor reported that the appellant denied any other injuries until an injury during Army National Guard service in 2000 and that the claimant stated his right knee pain had progressively worsened, especially after the 2000 injury. The doctor opined that the arthritis and all three tears were on a more medically probable basis the direct result of his military service, specifically the in-service injuries. In a June 2010 statement, a VA doctor indicated that he had reviewed the service treatment records and opined that the Veteran's right knee disability as likely as not began during military service. The April 2010 VA examiner, on the other hand, opined that the Veteran's current right knee arthritis and ligament tear were less likely than not related to his active military service. The examiner's rationale was that though the appellant was seen on several different occasions in service, there was no evidence that a chronic right knee disorder developed during active military service because there was no evidence of complaints between 1987 and 2010 of further complaints of a right knee disorder, which includes the time in which he underwent National Guard physical examinations. The Veteran did not complain of any knee symptomatology on military physical examinations in 1995 and 2001. He reported to Dr. Johnson in January 2010 that he has had progressively worse knee pain since an injury during National Guard service in 2000. The National Guard service treatment records do not show any complaints or treatment of a knee injury in 2000. He testified that he did not report his knee symptomatology to the Army National Guard in 1995 because it was not bothering him enough to warrant reporting it and that he did not seek any treatment for knee symptomatology from 1993 to 2000 because he did not have health insurance. Hearing transcript, pages 3, 9. He also indicated that he often fell while serving as an air assault instructor and that he often did not seek treatment to set an example to the soldiers he was training. Id. at 3-5. The appellant is competent to report a history of knee symptomatology since in-service treatment in 1987 and that he injured his knee during Army National Guard service in 2000. The Board finds that the evidence is equipoise as to whether he is credible in claiming continuity of knee symptomatology between his last documented in-service treatment in 1987 and 2010 and claiming that he suffered the undocumented 2000 Army National Guard injury because he provided at his hearing some context about his attitude toward reporting symptomatology. All the medical professionals reviewed the service treatment records and provided bases for their opinions. The VA examiner, however, did not address whether the meniscus tears were related to active service whereas Dr. Johnson did. The VA examiner is an advanced registered nurse practitioner whereas the Veteran's treating provider is a medical doctor. More importantly, Dr. Johnson is a board-certified orthopedic surgeon. Given Dr. Johnson's credentials, the Board gives his favorable opinion the most weight. See Black, 10 Vet. App. at 284. Accordingly, Hickson element (3) is established. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a right knee disability, to include arthritis. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to service connection for a right knee disability, to include arthritis, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs