Citation Nr: 1310672 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 94-077 75A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1952 to May 1956 and from June 1956 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Initially, in the interest of clarity, the Board deems it necessary to address the characterization and procedural posture of the issue on appeal. The Veteran initially submitted a claim for service connection for bilateral knee problems in May 1993. The July 1993 rating decision, in part, denied the Veteran's claim for service connection. New evidence was received and the claim was readjudicated and denied by a November 1993 rating decision. The Veteran submitted a timely notice of disagreement in January 1994 and, subsequently, the RO issued a statement of the case in February 1994. The Veteran submitted a timely VA Form 9 in March 1994 and requested a personal hearing at the St. Petersburg, Florida RO. There does not appear to be action on this claim until the Veteran submitted another claim for service connection for his knees in November 2000. The January 2001 rating decision denied the Veteran's claim for service connection for arthritis of the knees. The Veteran did not submit a notice of disagreement with respect to the January 2001 rating decision. In September 2011, the Veteran requested that his claim for service connection for his left knee and right knee conditions be reopened. The RO issued a May 2012 rating decision; however, after a review of the claims file, it was noted that the Veteran's claim had been pending since 1993 and the RO did not require a notice of disagreement or VA Form 9 from the Veteran and instead issued a supplemental statement of the case in August 2012. Thus, although there was a rating decision issued in January 2001 that was not appealed by the Veteran, this does not render the prior November 1993 rating decision as final. The Veteran's May 1993 claim for service connection for a bilateral knee disability has been pending since that time and the issue on appeal has been properly characterized as an original claim for service connection. See generally Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran files a timely appeal from a prior RO decision and VA fails to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final); see also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009) ( "[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed") (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). In an August 2012 statement, the Veteran stated that he no longer wished to appeal the issues pertaining to prostate cancer, postoperative artherosclerosis, right leg, loss of sense of smell, hypertension, bilateral hearing loss, tinnitus, and lumbar disc disease. These issues are considered withdrawn and are not before the Board at this time. In November 2012, the Veteran testified before the undersigned during a travel board hearing at the St. Petersburg, Florida RO. A copy of the hearing transcript has been associated with the claims file. In November 2012, the Veteran submitted additional evidence directly to the Board with a written waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). 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). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, a bilateral knee disability has been found to have begun during active duty and continued to the present. CONCLUSION OF LAW A bilateral knee disability, diagnosed as bilateral total knee arthroscopy, was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 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). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a bilateral knee disability. The medical evidence shows that the Veteran has a current disability. The VA treatment records reveal that the Veteran has been diagnosed with bilateral total knee arthroscopy with residuals of mild pain with excessive walking/standing. The service treatment records reveal that the Veteran complained of bilateral knee problems during his period of active service. The reports of medical examination in May 1952, January 1956, August 1957, April 1961, September 1961, February 1964, December 1964 and July 1966 show that the Veteran's lower extremities were clinically evaluated as normal. However, in 1983, the Veteran reported left knee pain and history of a hyperextension injury one year ago. The June 1983 radiographic report noted that the views of the knees revealed no radiographic bony or joint abnormalities. A questionnaire, dated when the Veteran was age 50, shows that the Veteran reported muscle pain or cramps and painful joints. The February 1991 physical examination questionnaire shows that the Veteran reported muscle pain or cramps and painful joints. The February 1991 report of medical examination shows that the lower extremities were clinically evaluated as normal. However, the July 1991 retirement physical examination report noted that the Veteran's first problem with his knee was 13 years ago. He reported that his left knee felt unstable and that he was examined and there was a probably degenerative tear of the menisci. The Veteran stated that now both knees cause some problems. It was noted that his last x-rays were completed thirteen years ago. On examination, the knees were noted to be in excellent shape and that the only abnormality was crepitus, left greater than right. Nonetheless, the examining physician listed an impression of mild patellofemoral degenerative joint disease. In addition, an impression of probable degenerative tear, left medial meniscus, by history, was listed. It was recommended that the Veteran have x-rays; however, the service treatment records do not reveal that x-ray studies were completed at that time. The accompanying report of medical history shows that the Veteran reported experiencing a "trick" or locked knee. Less than two years after his separation from active service, the Veteran filed a claim for compensation benefits in May 1993. He stated that he had bilateral knee problems since 1983. The Veteran was provided a general medical examination in June 1993. The Veteran reported he had aching and pain of both knees if he takes long walks or stands over long periods of time. The examiner noted that there were no significant orthopedic problems, but the Board notes that no x-ray studies were accomplished at that time. The July 1998 private medical record shows that the Veteran had joint space loss in both knees and the left was worse than the right. The subsequent records show that the Veteran underwent arthroscopic surgery on his right and left knees. The Veteran was provided a VA examination in March 2012. The Veteran reported that he strained his left knee running during active duty and that he had a total knee arthoscopy. The diagnosis was listed as bilateral total knee arthroscopy, well healed, residuals, and mild pain with excessive walking/standing or climbing stairs. The examiner opined that it was less likely as not that the bilateral knee conditions were caused by active duty service. The examiner stated that ". . . there is no new evidence to support vet's claims. . ." since he was denied service connection in 2000 or 2001. The examiner stated that there was no objective evidence of aggravation. The rationale provided was medical record review, medical literature review, and clinical experience. The Board notes that the examiner's opinion is inadequate in this case. The issue is not whether there is new evidence but whether the bilateral knee condition had its onset in service or is otherwise etiologically related to an in-service event, injury, or disease. The examiner did not appear to discuss the service treatment records wherein the Veteran reported bilateral knee problems. A private medical record dated in August 2012 shows that the Veteran was followed for aches and pains in both knees. Dr. M.F. stated that he has cared for the Veteran for probably fifteen or sixteen years and the Veteran had VA records of injury to his left knee back in 1978 that occurred while doing physical training (PT). The Veteran also recalled multiple minor injuries over the years for multiple joints in terms of both the active duty and training. Dr. M.F. stated that the Veteran has records of active duty with left knee injury and subsequent posttraumatic arthritis with that and he was sure that some of his other joint arthritic conditions were the results of the years of wear and tear and injuries. In light of the above, the Board finds that the evidence for and against the claim of service connection for a bilateral knee disability is at least in balance. First, the Veteran has a current disability of the bilateral knees. With respect to an in-service event, injury, or disease, the service treatment records show that the Veteran complained of problems with both knees. Although no specific injury to the right knee was mentioned, he reported problems with his right knee prior to separation from active service. The service treatment records do show that the Veteran reported an injury to his left knee while running during active service. During his examination in July 1991, the Veteran was assessed with degenerative joint disease and a probable tear of the left medial meniscus, by history (although there were no x-rays taken at that time). The Veteran stated that he had problems with his knees since service. The veracity of this assertion is bolstered by the fact that the Veteran sought service connection for bilateral knee problems less than two years after his separation from active service. Although the June 1993 VA examiner noted that there were no significant orthopedic findings (the Veteran complained of aching and pain in his knees), it does not appear that any x-ray studies were completed. Several years later, a 1998 private treatment record noted that the x-rays showed joint loss in both knees with left that is worse than right. With respect to nexus evidence, the Board notes that the evidence is limited in this regard. However, the Veteran's private physician, Dr. M.F., indicated that the Veteran had an injury during service with subsequent posttraumatic arthritis and that the Veteran also complained of minor injuries over the years with respect to his joints and that some of his other joint conditions were the result of years of wear and tear and injuries. Taking into consideration the service treatment records including diagnoses and complaints related to the knees, the Veteran's persuasive and credible statements regarding the onset of his bilateral knee conditions, and Dr. M.F.'s statement, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral knee disability had its onset in active service. Although the Board could remand for a new VA medical opinion, the Board finds that the medical evidence is sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, resolving any doubt in favor of the Veteran, the Board will grant service connection for a bilateral knee disability, diagnosed as bilateral total knee arthroscopy. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a bilateral knee disability, diagnosed as bilateral total knee arthroscopy, is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs