Citation Nr: 1311326 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-38 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The Veteran's current right knee disorder, diagnosed as degenerative joint disease of the right knee with joint effusion, cannot be reasonably disassociated from his active duty service. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the right knee, with joint effusion, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (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. 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 of entitlement to service connection for a right knee disorder. 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). Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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 Veteran served on active duty from April 1968 to March 1970. The report of his March 1968 pre-induction examination noted normal findings concerning his lower extremities. An October 1968 treatment report noted the Veteran's complaints of pain and limited motion in the right knee after a twisting type injury. Physical examination of the right knee revealed tenderness and swelling. A November 1968 treatment report noted that he continued to have persistent swelling and limited extension in his right knee. Physical examination revealed the right knee lacked 10 to 15 degrees of extension and swelling over the lateral aspect of the knee. The report concluded with an impression of a possible cartilage injury. The Veteran's January 1970 separation examination noted normal findings concerning his lower extremities. A February 1972 private treatment report noted the Veteran's complaints of increasing pain and swelling in the right knee for the past two years. The Veteran indicated that he initially injured his right knee in school, and later had problems with his right knee during his military service. Physical examination showed the right knee was swollen, with pain on motion and along the medial aspect of the knee. The report concluded with a diagnosis of osteochondritis dissecans of the right knee, with a free loose bony body in the knee. A February 1972 x-ray examination of the right knee revealed a small separated bony nidus adjacent to the medial epicondylar articulating surface. The report noted that this was characteristic of osteochondritis dessicans. In March 1972, the Veteran underwent removal of two large osteocartilaginous fragments from the knee, as well as drilling of the defect in the lateral aspect of the medial femoral condyle. A January 1999 private treatment report noted the Veteran's complaints of pain and swelling in his right knee. The report noted the Veteran's history of a right knee injury during high school. It also noted that he had problems with his right knee during his military service. X-ray examination of the right knee revealed loose bodies, posteriorly, and suggested one loose body, anteriorly. The report noted that this was a hemarthrosis and that the right knee was aspirated, which provided significant relief. A March 1999 private treatment report noted the Veteran's complaints of persistent patellofemoral crepitation, with minimal effusion. The physician opined that the Veteran's present condition was the "result of his old arthritic knee with multiple loose bodies." An August 1999 private treatment report noted that the Veteran had locking in his right knee when he was in the Army, and later underwent right knee surgery in the 1970s. Physical examination of the right knee revealed patella crepitance and pain. The report concluded with an impression of right knee pain and possible internal derangement. A March 2001 x-ray examination of the right knee revealed loose bodies in the posterior and central knee joint. It also revealed significant posterior patellar arthritic changes, with spurring and joint spaces that were mildly narrowed on the medial side. In June 2009, a VA examination for joints was conducted. The VA examiner noted that the Veteran's claims file had been reviewed, and the examination report included a summary of the Veteran's right knee treatment history. The report noted the Veteran's current complaints of right knee pain and stiffness, which was reported as aggravated with activity and improved with rest. Following a physical examination of the right knee, the report concluded with a diagnosis of degenerative joint disease of the right knee, with joint effusion. In a December 2009 supplemental examination report, the VA examiner stated that an opinion could not be provided as to whether the Veteran's current right knee disability was incurred or aggravated during his military service. The VA examiner indicated that "[t]he Veteran could certainly have developed osteochronritis dissecans from his injury during service," but that there exists other evidence, such as his normal separation examination, which would contradict that finding. In support of his claim, the Veteran has submitted copies of letters sent to his spouse during his military service which reference ongoing problems with his right knee. In October 2011, the Veteran and his spouse testified at a hearing before the Board that he continued to have right knee pain following his military service until he eventually underwent surgery in 1972. After having surgery, the Veteran and his spouse reported that he continued to have right knee pain and swelling, which continued to worsen over the years. Initially, the Board finds that the Veteran injured his right knee during his military service. As there is no right knee defect noted on his pre-induction examination, and as there is no clear and unmistakable evidence of record showing that a right knee disability preexisted service, the presumption of soundness has not been rebutted. 38 U.S.C.A. § 1111 (West 2002). After reviewing the evidence of record, the Board finds that the Veteran's current degenerative joint disease of the right knee, with joint effusion, is related to his military service. In making this determination, the Board finds the testimony and statements provided by the Veteran, concerning his history of pain and swelling in the right knee, are competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (noting that the appellant is competent to testify regarding symptoms capable of lay observation); see also Smith v. Derwinski, 1 Vet. App. 235 (1990) (finding that determination of credibility is a function of the Board). The Veteran's contentions were further supported by the testimony provided by his spouse, as well as the copies of letters sent to his spouse during his military service. His service treatment records document treatment for a twisting injury to the right knee, which resulted in pain, swelling, and reduced range of motion in the right knee for at least one month. Thereafter, post service treatment for the right knee was shown in February 1972, less than two years after his separation from service. Moreover, the February 1972 treatment report noted his history of right knee pain for the past two years. The following month, in March 1972, he underwent surgery on his right knee. Currently, the June 2009 VA examination for joints concluded with a diagnosis of degenerative joint disease of the right knee, with joint effusion. While the VA examiner determined that a nexus opinion could not be provided without resorting to speculation, the examiner stated that "[t]he Veteran could certainly have developed osteochronritis dissecans from his injury during service." This supports the March 1999 private medical the Veteran's present right knee disability was the "result of his old arthritic knee with multiple loose bodies." Accordingly, resolving all doubt in favor of the Veteran, service connection for degenerative joint disease of the right knee with joint effusion is warranted. ORDER Service connection for degenerative joint disease of the right knee, with joint effusion, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs