Citation Nr: 1304822 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-17 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right knee tendonitis. 2. Entitlement to service connection for left knee tendonitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military service from February 1987 to February 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran's claim was subsequently transferred to the Atlanta, Georgia, RO. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2012. A transcript of this proceeding has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran currently has right knee tendonitis that had its onset during her period of active duty service. 2. The evidence is in relative equipoise as to whether the Veteran currently has left knee tendonitis that had its onset during her period of active duty service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for right knee tendonitis, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for left knee tendonitis, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As the Board's decision to grant service connection for right and left knee tendonitis herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. II. Merits of the Claims Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal 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, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). For the showing of 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Service connection for certain disorders, to include arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Veteran contends that she is entitled to service connection for right and left knee tendonitis. The Board finds the evidence of record is in relative equipoise as to whether her current bilateral knee condition is related to her military service. In October 2012, the Veteran testified at the Board hearing that she first started to experience pain in her knees during her deployment. She stated she first sought treatment for her knees in March and April of 2006, after she had returned and that she was not diagnosed with tendonitis in the knees until after separation from service. The symptoms she experienced were burning sensations in both knees with some numbness. She stated she had difficulty climbing stairs and riding a bicycle. Notably, she reported experiencing a continuity of her symptoms for approximately 10 months from the time she first noticed her symptoms to when she was separated from service and sought treatment at the VA. The Veteran's DD 214 indicates that she was deployed to Kuwait from February 2003 to July 2003 and from December 2004 to September 2005. According to her service treatment records, the Veteran complained of and was treated for bilateral knee pain in March 2006. The pain was located in the anterior region and appeared with prolonged sitting. The pain worsened on rising from a seated position. There was no knee joint swelling, redness, warmth, joint stiffness, intermittent knee locking, clicking sensation, or grating sensation. A physical examination of the knees showed abnormalities. VA treatment records dated from April 2006 to February 2007 indicates the Veteran continued receiving physical therapy treatment for the pain in her knees without a clear diagnosis. She has consistently reported her symptoms of pain during this time. In September 2006, the Veteran was afforded a VA examination where she reported her pain existed for the past two years. She stated it was not from an injury but started from a long automobile drive. Her symptoms included a burning feeling when the knees were bent, and a constant, localized, aching pain on a scale of 2 out of 10. The pain was elicited by physical activity and relieved with rest. Her condition did not cause incapacitation or functional impairment. A physical examination revealed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement or guarding of movement, bilaterally. The range of motion was flexion at 140 degrees and extension at 0 degrees bilaterally with no additional limitations of pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. All stability tests were within normal limits. X-rays of both knees revealed normal findings. Upon reviews of the evidence of record and a physical examination, the examiner stated "there is no diagnosis because there is no pathology to render a diagnosis." Finally, according to an April 2009 VA treatment record, the Veteran had mild tenderness in the knees and was subsequently diagnosed with bilateral patellar tendonitis. The Board acknowledges the Veteran's lay history of her condition. She has testified under oath at the Board hearing that she first experienced her symptoms during service and that it was ongoing into separation and beyond. The Veteran is considered competent to report the observable manifestations of her claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002)("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that a claimant exhibited certain symptoms at particular time following service). Furthermore, despite the absence of a diagnosis of any bilateral knee condition on VA examination in September, the objective medical evidence includes a diagnosis of a current bilateral knee disability, specifically tendonitis, as shown in the April 2009 VA treatment record. Accordingly, resolving all reasonable doubt in favor of the Veteran, the record establishes the existence of a current disability. The Board finds, purposes of this decision, that the symptoms and treatment of bilateral knee pain in 2006 during service, with continuing symptoms of the same after service in 2006 and 2007, and the diagnosis of bilateral patellar tendonitis in 2009, raise a reasonable doubt as to the initial onset of the Veteran's bilateral knee tendonitis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In view of the totality of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right and left knee tendonitis resulted from service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board determines that service connection for right and left knee tendonitis is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted ORDER Entitlement to service connection for right knee tendonitis is granted. Entitlement to service connection for left knee tendonitis is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs