Citation Nr: 1315262 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-13 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from July 1981 to May 1982; from September 1990 to October 1991; and from March 2003 to October 2004. He had additional duty with the North Carolina Army Reserve National Guard. This matter came before the Board of Veterans' Appeals (Board) on appeal from a an August 2005 rating decision of the St. Louis, Missouri, Regional Office which denied service connection for depression, lumbar spine degenerative disc disease, and a right knee disorder. In February 2007, the Winston-Salem, North Carolina, Regional Office (RO) granted service connection for major depressive disorder; assigned a 50 percent evaluation for that disability, and effectuated the award as of October 7, 2004. In August 2012, the Board granted service connection for lumbar spine degenerative disc disease and remanded the Veteran's claim for service connection for a right knee disorder to the RO for additional action. In February 2013, the Board again remanded the Veteran's claim to the RO for additional action. That action requested by the February 2013 Board remand has been accomplished, and the case returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran sustained right knee trauma during active service. 2. The Veteran was diagnosed with a right knee meniscal tear and underwent multiple associated Department of Veterans Affairs (VA) arthroscopic right knee arthroscopic procedures. 3. The Veteran has post-operative right knee injury residuals. 4. Post-operative right knee trauma residuals to include medial meniscal tear residuals originated during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, post-operative right knee injury residuals including medial meniscal tear were incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for post-operative right knee injury residuals to include medial meniscus tear; therefore, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for a Right Knee Disability The Veteran asserts that service connection for a post-operative right knee disability is warranted because a right disorder was sustained during active service when his knee struck the dashboard of the military vehicle in which he was riding while he was stationed in Saudi Arabia. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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 claimed disorder is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran asserts that he sustained a right knee injury when his knee struck the dashboard of the military vehicle in which he was riding while stationed in Saudi Arabia. He states that his in-service right knee trauma precipitated a medial meniscal tear necessitating three VA arthroscopic procedures. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran sustained right knee trauma during active service. The evidence that tends to show that the Veteran sustained a right knee injury in service includes service treatment records that show he was seen for right knee complaints. An undated Annual Medical Certificate (NGR Form 40-501) states that the Veteran had a "torn meniscus" and was scheduled for knee surgery at a VA facility. VA clinical documentation dated in May 1994 notes that the Veteran presented a history of having "injured [his right] 12-90 on Humvee jeep" "while in [Persian] Gulf." A June 1994 North Carolina Army Reserve National Guard individual sick slip reports that the Veteran sustained "injury to [right] knee-recurring." A September 1994 VA treatment record states that the Veteran reported having injured his right knee in "a roll over" in Saudi Arabia. Contemporaneous X-ray studies of the right knee note that the Veteran was "injured 2 years ago in auto wrock (sic) in Saudia (sic)." Although the knee was found to be within normal limits, an impression of "[ruleout] medial meniscus tear, [right] knee" was advanced. An October 1994 service treatment record conveys that the Veteran had "extensive tears of his right knee cartilage" and was scheduled for surgery in June 1995. VA clinical documentation dated in January 1995 states that the Veteran presented a history of having "struck his [right] knee on dashboard in 1990." VA clinical documentation dated in January 1998 VA treatment record reflects a history of a "[right] knee injury (dashboard)" and being a "Veteran of the Gulf War where he had a motor vehicle accident and subsequently injured his right knee." At a February 2010 psychiatric examination conducted for VA, the Veteran reported that he had participated in combat in both the Gulf War and the Iraq War. Service connection for PTSD based upon the Veteran's combat experiences has been established. The evidence weighing against a finding of in-service right knee injury includes that, at the April 1991 physical evaluation for Desert Storm Demobilization, the Veteran was reported to exhibit normal lower extremities, and no right knee disability was identified. While the Veteran was treated for a right knee disorder during active service after 1991, the Board observes that there is no specific documentation of the cited in-service motor vehicle accident; however, the treating VA medical personnel performing the Veteran's multiple arthroscopic procedures in 1995, 1996, and 1998 specifically noted the Veteran's subjective history of in-service right knee trauma and did not conclude or otherwise advance any findings that such a history was inconsistent with his diagnosed right knee disability. Resolving reasonable doubt in the Veteran's favor on the question of in-service right knee injury when striking his knee on the dashboard, the Board finds that the Veteran sustained a right knee injury in service that involved a torn meniscus. The evidence demonstrates that the Veteran has a current right knee disability of right knee meniscal tear, for which he has undergone multiple VA right knee arthroscopic procedures. For example, VA clinical documentation dated in January 1995 reflects a history of arthroscopic debridement of a right knee posterior horn degenerative meniscal tear. An April 1996 VA magnetic resonance imaging study of the right knee revealed a posterior horn medial meniscal horizontal tear with mucoid degeneration. A May 1996 VA operative note indicates that the Veteran was diagnosed with a right medial meniscal tear and subsequently underwent a partial medial meniscectomy. At a November 2012 VA general medical examination, the Veteran was diagnosed with "right knee internal derangement." The Board also finds that the evidence is at least in equipoise on the question of whether the currently diagnosed right knee disability is related to the in-service right knee injury. VA clinical documentation dated in January 1998 reflects a history of right knee injury (dashboard) in service and subsequent right knee arthroscopic excision of a medial parapatellar plica. A May 2002 Army treatment record states that the Veteran complained of "[right] knee pain [secondary to] cartilage problems 6-7 [years]." A May 2002 North Carolina Army Reserve National Guard physical evaluation reports that the Veteran presented a history of "[right] knee surgery 3 times still no help." On examination, the Veteran exhibited "[right] knee pain [associated with] cartilage - chronic." The evidence weighing against a finding of nexus to service includes a negative VA examination opinion. At a November 2012 VA general medical examination, at which the Veteran was diagnosed with" right knee internal derangement," the VA examiner opined that the Veteran's right knee disability "was less likely than not (less than 50 percent probability) incurred in or caused by claimed in-service injury, event, or illness." The VA examiner clarified that "the service treatment records are silent with regard to any knee complaints prior to 1994, so there would be no documented nexus for his knee derangement to have occurred during service between September 1990 and October 1991." The examiner made no specific findings as to either the Veteran's history of having injured his right knee in a December 1990 military vehicle accident in Saudi Arabia or the etiology of his right medial meniscal tear. The report of the November 2012 VA examination concludes that "the service treatment records are silent with regard to any knee complaints prior to 1994, so there would be no documented nexus for his knee derangement to have occurred during service between September 1990 and October 1991." The Board finds that such a conclusion constitutes and inaccurate fact, as it is belied by the histories and VA clinical documentation dated in 1994 and 1995 which includes histories of in-service right knee injury during a motor vehicle accident and complaints or findings consistent with a right knee disorder. Further, given the VA examiner's failure to adequately discuss both the Veteran's subjective in-service history of a motor vehicle accident and his combat experiences, the Board concludes that the November 2012 VA examination report is of little probative value. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the post-operative right knee injury residuals that include medial meniscal tear originated during active service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for post-operative right knee injury residuals that include medial meniscal tear is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs