Citation Nr: 1314946 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 02-20 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for osteoarthritis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to February 1990 and from August 1990 to March 1991. He had additional periods of service with the Reserve Officers' Training Corps (ROTC) and the National Guard of Tennessee. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for right and left knee osteoarthritis. In February 2009, the Veteran testified at a video-conference hearing before the undersigned Veteran's Law Judge. In May 2009 and February 2011, the Board remanded the claims to the RO for additional evidentiary development. In December 2012, the Board granted the claim for service connection for osteoarthritis of the left knee and remanded the claim for osteoarthritis of the right knee for further development. In March 2010, the Veteran filed a claim seeking to reopen his claim of entitlement to service connection for a left ankle disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction over it. As such, it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's osteoarthritis of the right knee was incurred in, or caused by, his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoarthritis of the right knee have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 order to establish service connection for the claimed disorder, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). That an injury incurred 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). In order to establish service connection for a claimed disorder, 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Where, as here, an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, VA regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In the instant case, the Veteran had a period of regular active service and he described receiving an entrance examination contemporaneous with his enlistment into active service. However, while the record contains several periodic examination reports and a separation examination report, his induction examination report is not of record. Consequently, there is no evidence showing that any right knee problems were noted during this examination. Therefore, as the Veteran was examined, accepted, and enrolled for service, and there is no evidence that any defects, infirmities or disorders were noted at the time of examination, the presumption of soundness applies. See 38 C.F.R. § 1111. The presumption of soundness can be rebutted where the evidence clearly and unmistakably shows that the Veteran's disability existed before acceptance and enrollment into service and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Evidence is clear and unmistakable where it "cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The record contains clear and unmistakable evidence of a pre-existing right knee disorder. Records from September 1986 show a diagnosis of non-union of the ossicle of the right tibial tubercule of the right knee. The Veteran was noted to have had right knee pain for many years, with an increase in pain when running. X-rays at that time showed lateral subluxation of patellae, non-union of the ossicle, and overgrowth of the tibial tubercule. An excision of the ossicle patellar tendon of the right knee was recommended, but there is no indication in the record whether the operation was performed. Also, the Veteran suffered bruising to the right knee after a motorcycle accident in March 1987. However, the evidence does not clearly and unmistakably show that the Veteran's right knee disorder was not aggravated by service. The Veteran asserts that he did not have ongoing problems with his knees at enlistment, but that, gradually, his knee pain increased throughout his military service and that the knees were particularly impacted by running during service. The severity of pain experienced is a subjective matter that is routinely reported by laypersons based on their sensory observations. See generally Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board also finds that this statement is credible as it is consistent with the history taken by a VA medical examiner in March 2012 and earlier notations of particular knee difficulty associated with running, a prevalent activity during Army service. Further, during the March 2012 VA examination, the VA examiner asserted that the Veteran had progressive disability of both knees during his years of military service. Therefore, as there is lay and medical evidence that the Veteran's right knee disorder was aggravated in service, the presumption of soundness has not been rebutted. Consequently, the Board may not find that the Veteran's current right knee disorder pre-existed service, and the second element of a service connection claim, the manifestation or incurrence of an in-service disease or injury, is established on the basis of the Veteran's competent and credible reports of increasing knee pain during service and the opinion provided in the March 2012 VA examination report. With regard to the first element of a claim for service connection, private treatment records show a diagnosis of significant arthritis of the knees as early as March 1999 with a treating physician advising that he prohibited the Veteran from running as it was detrimental to his knee health. Subsequent records and examination reports confirm a diagnosis of osteoarthritis of the bilateral knees. See, e.g., March 2012, August 2009, and June 2008 VA examination reports and November 2006 private treatment records. Therefore, a current disability of right knee osteoarthritis is clearly established by the medical evidence of record. Lastly, the third element of a claim for service connection, a nexus between the current disability and an incident or injury in service, is supported by the conclusion of the March 2012 VA examiner, in a July 2012 addendum. The examiner commented that the Veteran had progressive disability in both knees during years of military service in the 1990s, including pain, stiffness and range of motion, thus clearly indicating a relationship between the right knee osteoarthritis, diagnosed as early as 1999 and service. Notably, the August 2009 and June 2008 VA examiners did find that the Veteran's pre-existing right knee disability was less likely than not aggravated by service. However, because these examiners formulated these opinions in the context of the Veteran having a pre-existing right knee disability and because he must be considered sound on entry, the Board does not find that their probative value in regard to direct service connection outweighs that of the July 2012 addendum opinion, thus placing the evidence at least in equipoise regarding the presence of a medical nexus. Gilbert, 1 Vet. App. 49, 55 (1990). Consequently, resolving reasonable doubt in the Veteran's favor, the nexus element is also established. 38 C.F.R. § 3.102. Accordingly, service connection for right knee osteoarthritis is warranted. ORDER Service connection for osteoarthritis of the right knee is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs