Citation Nr: 1303357 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-23 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a left knee disorder. The Veteran filed a notice of disagreement (NOD) in July 2012. A statement of the case (SOC) was issued in August 2012. A substantive appeal was received in August 2012. The Veteran and his wife presented testimony before the Board in January 2013. The transcript has been associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The positive evidence is in a state of equipoise with the negative evidence on the question of whether the Veteran's current chronic left knee disability was manifested during active military service. CONCLUSION OF LAW The criteria for service connection for a left knee disability, diagnosed as arthritis, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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. 38 C.F.R. § 3.303(d). The Board notes that the Veteran's service treatment records were apparently destroyed in a 1973 fire at the National Personnel Records Center (NPRC). The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The Veteran contends that he is entitled to service connection for a left knee disability. He contends that he injured his left knee in service when he was operating a cable dozer in Korea, when he twisted his knee stepping off the dozer. Post-service, private treatment records indicated the Veteran sought treatment in February 1981 for a loose body in the left knee. He was admitted privately for an arthrotomy of the left knee, wherein a big tear of the cartilage was found. Before the undersigned the Veteran testified that he experienced chronic swelling of his left knee prior to this surgery; however, after this February 1981 surgery, the knee never swelled or locked up again. Additional private treatment records indicated that in April 2010 the Veteran sought treatment for his left knee, complaining that the previous Thursday he is stepped down on the knee and experienced pain. He informed the private physician of the 1981 surgery and that since he had done well. An x-ray study reviewed medial compartment narrowing with bone on bone contact. He was recommended over-the-counter Aleve. A follow-up visit in May 2010 included the Veteran's report of improvement. The private physician gave him a shot of Depo-Medoral. The next treatment of record was in June 2012, when the Veteran complained of a flare-up in his arthritic knee and requested another injection. In his May 2012 statement, the Veteran reported that his left knee had bothered him since service, though the pain and discomfort was minor and would go away. This changed approximately five years ago, when the pain increased and has become worse. In January 2013, the Veteran presented testimony before the Board. He testified that he injured his left knee in Korea when he stepped off a dozer. He indicated that he continued to suffer from left knee problems since service. After reviewing the totality of the evidence, to include the Veteran's sworn testimony, the Board finds that there is a state of equipoise between the positive evidence and the negative evidence. 38 U.S.C.A. § 7105(c). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Service treatment records are not available. The Veteran has described the injury in service as occurring while operating a dozer, while stepping off a dozer, and as twisting the left knee while stepping off a dozer. Initially, he reported he sought medical attention and had the left knee wrapped in an Ace bandage, though in the substantive appeal, he reported he was placed in a hospital for four days with a torn cartilage. At hearing he testified that he was placed in a hospital for his left knee and it was wrapped in an Ace bandage there. Post-service, the Veteran has an arthrotomy on the left knee in 1981 which found a big tear in the cartilage and in April 2010 the left knee was assessed with arthritis. The Veteran has asserted that he had continued or ongoing left knee problems since service, these statements are found to be credible for the purpose of establishing a continuity of symptomatology following service and supported by the objective medical evidence of record. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Hence, service connection for a left knee disability, namely left knee arthritis, is warranted. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in May 2012, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Entitlement to service connection for left knee disorder, currently diagnosed as arthritis, is warranted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs