Citation Nr: 1313092	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  10-41 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for a right knee disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel


INTRODUCTION

The Veteran served in the Air National Guard and Army Reserves with periods of active duty for training (ACDUTRA) between June 1988 and February 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for residuals of a right knee injury.  In July 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in October 2010.

While the Veteran did request a Central Office hearing on his October 2010 VA Form 9, in a subsequent communication received later in October 2010, he withdrew his request for a Board hearing.  Accordingly, the Veteran's hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2012).


FINDING OF FACT

The Veteran's currently diagnosed right knee disability is the result of a disease or injury in service.


CONCLUSION OF LAW

A right knee disability was incurred in or aggravated by a period of qualifying military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  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.  When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

As to the claim of entitlement to service connection for a right knee disability, this claim has been granted, as discussed below.  As such, the Board finds that any error related to the VCAA is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran alleges that he currently suffers from a right knee disability as a result of his active military service.  Specifically, he claims that he injured his right knee after using a rowing machine and running during ACDUTRA and that he has experienced worsening right knee pain since that time.  In light of his current diagnosis of right knee arthritis, he believes that service connection is warranted.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002).  However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease.  If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity.  See 38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

Active military, naval, or air service includes any period of ACDUTRA during which a veteran was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which a veteran was disabled from an injury incurred or aggravated in the line of duty.  See 38 U.S.C.A. §§ 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) (2012).  ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State.  See 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1) (2012).  Presumptive periods, under 38 C.F.R. §§ 3.307 and 3.309, do not apply to ACDUTRA or INACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). 

Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury (but not disease) incurred or aggravated while performing INACDUTRA.  See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002).

In order to establish service connection for a disability, 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).

The Veteran was afforded a VA general medical examination in August 2008.  At that time, the examiner diagnosed him with osteoarthritis of the bilateral knees.  As such, the first element of Hickson is met for the Veteran's claim for service connection for a right knee disability.

The Veteran's service treatment records indicate that he was seen for complaints of right knee pain in April 1997.  His personnel records confirm that he was on ACDUTRA at this time.  As there are right knee complaints during active service, the second element of Hickson is met.

The remaining question is whether a medical nexus exists between the Veteran's in-service right knee complaints and his current right knee osteoarthritis.

As noted above, the Veteran was afforded a VA examination in August 2008.  Although the examiner diagnosed the Veteran with a right knee disability, he did not provide any opinion on the etiology of this disability or whether it may be linked to his active service.

In light of the lack of nexus opinion in the August 2008 VA examination report, the Board obtained a medical opinion from the Veterans Health Administration (VHA) in March 2013.  The VHA examiner reviewed the Veteran's claims file and concluded that it was at least as likely as not that the Veteran's chronic progressive right knee condition is due to his April 1997 in-service injury.  The examiner specifically noted that the Veteran's condition in service, patellofemoral syndrome, can lead to osteoarthritis over time with repeated aggravations.  Therefore, the VHA opinion concluded that the Veteran's current right knee disability was the result of his active military service.

In addition to the March 2013 positive VHA opinion, the Veteran provided an opinion from his private physician dated in December 2010.  His private physician also concluded that the Veteran's April 1997 in-service complaints and continuous complaints of right knee problems since that time were sufficient to justify a medical nexus between his military service and his current right knee arthritis.

In light of the March 2013 positive VHA opinion and December 2010 positive private physician opinion and the lack of evidence to contradict these positive opinions, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current right knee arthritis is related to his active duty service.  As such, the Board will give the Veteran the benefit of the doubt, and conclude that service connection for a right knee disability is warranted.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for a right knee disability is granted.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs