Citation Nr: 1318575 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-03 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. He subsequently served in the Marine Reserves and Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The case is under the jurisdiction of the Portland, Oregon RO. In March 2011, the Veteran testified at a Board hearing before the undersigned. A transcript of this hearing is associated with the claims file. The Veteran submitted additional evidence at his hearing along with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's bilateral knee disability, diagnosed as degenerative joint disease of the bilateral knees, is causally related to his military service. CONCLUSION OF LAW Service connection for a bilateral knee disability, diagnosed as degenerative joint disease of the bilateral knees, is warranted. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002); 38 C.F.R. § 3.102 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudicating the claim of service connection for a bilateral knee disability because of the favorable decision on this claim. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. II. Service Connection The Veteran contends that the cumulative effect of trauma to his knees during his military service - from jumping down from vehicles, carrying heavy loads, and performing physical training in boots on uneven ground - resulted in his current knee disabilities. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may additionally be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002). In order to establish service connection for the claimed disorder, generally, 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 record contains medical evidence demonstrating that the Veteran has a current bilateral knee disability. During a VA orthopedic appointment in September 2010, the Veteran was diagnosed with degenerative joint disease of the bilateral knees. Therefore, the first Hickson element has clearly been satisfied. Turning to the second Hickson element, although the Veteran's service treatment records fail to reflect treatment or diagnosis of a bilateral knee disability, there is other evidence of record indicating that the Veteran injured his knees during service. The crux of the Veteran's claim is that the cumulative effect of performing his duties as a mechanic in service led to his current disabilities. He has cited examples such as lifting starters that weighed between 85 and 100 pounds, jumping down from vehicles, and tasks that required bending and stooping. Board Hearing Tr. at 16, 17. Service personnel records verify that the Veteran worked as a mechanic in service. The record also contains private treatment records from March and April 1983 when the Veteran reported right knee pain. At that time, he was diagnosed with right medial ligament strain, which resolved. Moreover, the Veteran has testified that he had knee pain during service. Board Hearing Tr. at 4, 11, 16. He is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Given the evidence that the Veteran served as a mechanic in service and reported knee pain to a private physician while a member of the reserves (although not during a period of reserve service), the Board finds his reports of experiencing knee pain during service to be not only competent, but credible as well. The Board notes in this regard that it may not reject the credibility of the Veteran's lay testimony regarding the in-service knee pain simply because it is not corroborated by contemporaneous medical records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In short, to the extent the Veteran alleges knee pain during service, the second Hickson element has been satisfied. There is only one medical opinion of record regarding the final Hickson element. After soliciting an expert medical opinion, the Board received an opinion from the Chief of Orthopedic Surgery at a VA Medical Center in May 2013. The physician opined that the Veteran's current bilateral knee disability is at least as likely as not caused by his active, reserve, and/or National Guard service. The physician stated that there is ample evidence in the orthopedic literature to support the fact that trauma to the knee joint or ligaments can lead to subsequent degenerative joint disease much later in life. He noted that outside of service the Veteran had worked as a mechanic, a warehouse manager, and a volunteer fire-fighter. According to the physician, chronic repetitive trauma to the knee is an occupational hazard and this has been well documented. The physician opined that trauma could result from military exercises or from working on your knees as a civilian mechanic or even as a warehouse worker in shipping supplies. He further noted that recent literature has pointed to the fact that there is a higher correlation of knee osteoarthritis with active military service, but relayed that there was a need for further research in this area. In summary, the expert medical opinion indicates that trauma to the knee can result in degenerative joint disease later in life, that the Veteran likely had chronic repetitive trauma in his military duties, and that literature shows a higher correlation of knee osteoarthritis with active military service - thus, it is at least as likely as not that the Veteran's bilateral knee disability is caused by his service. The Board notes that as the examiner's opinion is about an injury during service it does not matter if the reserve service during which the Veteran was injured was ACDUTRA or INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106. As the May 2013 expert opinion is not contradicted by any other evidence of record, the Board finds that the final Hickson element has been satisfied. Because each of the three Hickson elements has been met, service connection for a bilateral knee disability, diagnosed as degenerative joint disease of the bilateral knees, is warranted. ORDER Service connection for a bilateral knee disability, diagnosed as degenerative joint disease of the bilateral knees, is granted. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs