Citation Nr: 1317079 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-04 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by which the Regional Office (RO) in Portland, Oregon, denied service connection for a left knee disability. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is associated with the Veteran's claims folder. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2), requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2013 Board hearing, the VLJ specifically noted the issue on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, the VLJ substantially complied with the requirements of Bryant. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. A left knee disability was not identified on the examination when the Veteran was accepted for his period of active service and a left knee disability did not pre-exist active service. 2. The Veteran injured his left knee in service and he had chronic symptoms of left knee pain and aching in service and since service separation. 3. The Veteran's current mild tricompartmental degenerative arthrosis of the left knee is related to the left knee injury and symptoms in service and the left knee symptoms since service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for mild tricompartmental degenerative arthrosis of the left knee are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Pertinent Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Every person employed in the active military, naval, or air service 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 the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption of soundness is a presumption that the veteran was in sound condition upon entrance into service, except as to defects, infirmities, or disorders noted at that time. See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). The presumption of soundness only attaches where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that demonstrates that the injury or disease preexisted service and was not aggravated by such service. The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. See 38 U.S.C.A. § 1111; 38 C.F.R. 3.304(b); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Post-service medical evidence/opinion can rebut the presumption of soundness. See Harris v. West, 203 F. 3d. 1347 (Fed. Cir. 2000). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he incurred a left knee disability in service. At the hearing before the Board in March 2013, the Veteran stated that he injured his left knee in high school before service, but upon service enlistment examination, they determined that the left knee was normal. The Veteran indicated that he was not having any left knee symptoms at the time he entered service. He stated that since service, he had minor aches and pain in the left knee on and off. See the March 2013 Board hearing transcript. In an April 2009 statement, the Veteran stated that he was cleared to enter service and while in service, his left knee was re-injured and it gave him a lot of problems. At the May 2012 VA examination, the Veteran reported that he injured his left knee in high school before service and he had medial joint line pain. The Veteran did not have surgery and played sports in high school the following year with no problems. The Veteran stated that he entered the military and began to have retropatellar knee pain which resulted in arthroscopic surgery. He reported having knee pain on and off since service. The Veteran indicated that he injured his left knee in 2006 and had surgery for a meniscus tear. There is no evidence of a left knee disability upon entrance examination. The November 1984 report of medical history indicates that the Veteran reported a history of torn cartilage two years prior with no surgery. He denied having a trick or locked knee; arthritis, bursitis, or rheumatism; or a bone or joint or other deformity. The November 1984 enlistment examination report indicates that examination of the lower extremities was normal. X-ray examination of the left knee was within normal limits. A left knee disability or disorder was not detected upon enlistment examination. When no preexisting condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that demonstrates that the injury or disease preexisted service and was not aggravated by such service. The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See 38 U.S.C.A. § 1111; 38 C.F.R. 3.304(b); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In the present case, the evidence is not clear and unmistakable that a left knee disability existed prior to service and was not aggravated by such service. As discussed above, examination of the left knee was normal upon entrance examination in November 1984. Service records show that the Veteran entered active duty in July 1985. A September 30, 1985 service treatment record indicates that the Veteran sought treatment for left knee tenderness. He had the tenderness for 3 days. Examination revealed full range of motion without crepitus, deformity, edema, or effusion. There was point tenderness at the medial left patella. The assessment was patellofemoral joint syndrome. The Veteran was given Motrin and was restricted from physical training for 5 days and was told to return to the clinic in 5 days. An October 1985 statement of medical examination and duty status indicates that the Veteran stated that he was jogging at Sand Hill and injured his knee. It was noted that the Veteran injured his left knee while running during the morning of September 20, 1985 during physical training and he further injured the knee the following day. The statement indicates that the Veteran went to sick call and returned to duty with a 2 day profile. He returned for treatment on September 30 and October 4. He eventually underwent arthroscopic surgery and was released on October 28, 1985. An October 4, 1985 service treatment record indicates that the Veteran had peripatellar pain with running, climbing stairs, and prolonged sitting. The Veteran denied an injury. Examination of the left knee revealed full range of motion. There was mild medial and lateral facet tenderness and a mild compression test. The assessment was patellofemoral pain syndrome, mild. The Veteran was restricted form physical training for 7 days. The Veteran sought medical treatment for knee pain on October 9, 1985. An October 10, 1985 orthopedic assessment indicates that the provisional diagnosis was chronic knee pain and patellofemoral joint syndrome without effusion, existed prior to service. The Veteran denied having a previous history of knee problems and he now had severe knee pain with swelling. Physical examination revealed a lack of 5 degrees on extension and thigh atrophy of 1/2 inch. The assessment was meniscal tear versus chrondromalcia. An arthroscopy was scheduled. Service treatment records show that the Veteran underwent arthroscopic surgery on the left knee. The ligaments were stable and examination was normal. The final diagnosis was chondromalacia. A December 1985 Entrance Physical Standards Board (EPSBD) indicates that the Veteran was seen and evaluated in his 10th week of initial enlistment basic training. The report indicates that the Veteran had a pre-service injury in 1983 and the diagnosis was a probable torn meniscus. It was noted that he now had increasing pain in the left knee with running and physical training. Arthroscopy and x-ray examination of the left knee was normal. The diagnosis was chondromalacia. The EPSBD found that the left knee disability existed prior to service and was not aggravated in service. It was recommended that the Veteran be separated from the military and he was placed on a permanent L3 profile with no running. The Veteran separated from service on December 23, 1985. The Board finds there is no clear and unmistakable evidence that a left knee disability pre-existed service. The Board finds that there is evidence that left knee chondromalacia may have pre-existed service but this evidence does not rise to the standard of clear and unmistakable. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Clear and unmistakable evidence is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261, 263 (Nebeker, C.J., concurring in part and dissenting in part). In this case, the evidence is not undebatable that the left knee disability, diagnosed as chondromalacia, pre-existed service. As discussed above, enlistment examination, dated in November 1984, indicates that examination of the left knee was normal and the Veteran had no complaints pertinent to the left knee. The Veteran reported having a left knee injury prior to service but the left knee was normal upon entrance examination. The December 1985 EPSBD report indicates that the left knee chondromalacia existed prior to service. However, these findings are inconsistent with the enlistment examination showing normal left knee examination and the report that documents a left knee injury in service in September 1985. Further, the May 2012 VA examination report indicates that the VA examiner opined that there was no evidence that the Veteran had any residual issues to the left knee after his skateboarding injury prior to service and he was found to be fit for service upon entrance examination. Thus, the Board finds that the evidence is not clear and unmistakable that the left knee disability pre-existed service and was not aggravated in service. As such, the presumption of soundness is not rebutted. Turning to the elements of a service connection claim, the more probative evidence indicates a current diagnosis of mild tricompartmental degenerative arthrosis of the left knee. See the May 2012 VA examination report. The Board finds that in this case, degenerative arthrosis of the left knee can be considered to be arthritis since it is a disease of the left knee joint. The Court has defined "arthritis" as "articular rheumatism or inflammation of a joint." Zevalkink v. Brown, 6 Vet. App. 483, 494 (1994). "Arthritis" is defined as inflammation of a joint. Dorland's Illustrated Medical Dictionary 152 (31st ed. 2007). The Court has defined "osteoarthropathy" as a disease of joints or bones. Godfrey v. Brown, 7 Vet. App. 398, 403 (1995). Arthrosis is defined as "a joint or articulation" or "a disease of a joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). In the present case, the Board finds that the condition at issue, mild tricompartmental degenerative arthrosis of the left knee, can be considered to be arthritis of the left knee. The May 2012 VA examination report notes that the VA examiner indicated that there was imaging studies of the left knee and degenerative or traumatic arthritis was documented. Thus, the Board finds that the degenerative arthrosis of the left knee or arthritis of the left knee is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are applicable. See Walker, supra. The Board finds that there is competent and credible evidence that the Veteran experienced "chronic" symptoms of left knee pain, tenderness, and swelling during service and he had continuous recurrent left knee symptoms since service so as to warrant presumptive service connection for left knee degenerative arthrosis under the provisions of 38 C.F.R. § 3.303(b). At the hearing before the Board in March 2013, the Veteran stated that he was not having any left knee symptoms at the time he entered service. He stated that since service, he had minor aches and pain in the left knee on and off. In an April 2009 statement, the Veteran stated that he was cleared to enter service and while in service, his left knee was re-injured and it gave him a lot of problems. At the May 2012 VA examination, the Veteran reported that he injured his left knee in high school before service and he had medial joint line pain. The Veteran did not have surgery and played sports in high school the following year with no problems. The Veteran stated that he entered the military and began to have retropatellar knee pain which resulted in arthroscopic surgery. He reported having knee pain on and off since service. The Veteran is competent to describe observable symptoms such as pain. A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are found to be credible as they have been consistent and are confirmed by the circumstances of his service and the service treatment records. As noted above, the service treatment records establish that the Veteran's left knee was normal upon enlistment examination and in September 1985, the Veteran injured his left knee and subsequently, he had left knee pain and tenderness. For this reason, the in-service injury to the left knee and in-service and post-service left knee symptoms are established. The Board finds that the Veteran experienced "chronic" left knee symptoms of pain and aching during service and since service so as to warrant presumptive service connection for left knee arthrosis under the provisions of 38 C.F.R. § 3.303(b). The Board also finds that symptoms of left knee pain have been continuous since service separation, which also is a basis for a grant of presumptive service connection under 38 C.F.R. § 3.303(b). The evidence demonstrates a current diagnosis of mild tricompartmental degenerative arthrosis of the left knee. The Board has considered the May 2012 VA medical opinion on which indicates that the Veteran's current left knee diagnosis of mild tricompartmental degenerative arthrosis is not related to the diagnosis of chondromalacia in service. This medical evidence and the December 1985 EPSBD report weigh against the claim for service connection. However, the Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current left knee tricompartmental degenerative arthrosis is related to the left knee injury and symptoms in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for left knee tricompartmental degenerative arthrosis have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The claim of service connection for left knee tricompartmental degenerative arthrosis is granted. ORDER Service connection for left knee tricompartmental degenerative arthrosis is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs