Citation Nr: 1319692 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 01-08 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: John Ketcherside, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 3, 1980 to February 29, 1980. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from February 2000 and November 2000 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's January 2000 request to reopen his claim for service connection for a right knee disorder. In April 2002, the Veteran testified at a hearing before a Veterans Law Judge who has since retired. A copy of the hearing transcript is in the record. In September 2002, the Board reopened the Veteran's claim due to the submission of new and material evidence and remanded the claim in September 2003, June 2004 and March 2006. In July 2006, the Veteran withdrew his request for another Board hearing. In an October 2006 decision, the Board denied entitlement to service connection for a right knee disorder. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2007 Order, the Court vacated the Board's decision and remanded this appeal for further development consistent with the instructions in a November 2007 Joint Motion to Remand. In March 2008, the Board again remanded the case, and in a September 2008 decision, the Board denied entitlement to service connection for a right knee disorder. The Veteran appealed the Board decision to the Court. In a November 2009 Order, the Court vacated the Board's decision and remanded this appeal for further development consistent with the instructions in a November 2009 Joint Motion to Remand. The case was returned to the Board for further appellate consideration. In July 2010, the Board remanded the Veteran's claim and in March 2011, the Veteran appeared before the undersigned Acting Veterans Law Judge and gave testimony in support of his claim. A complete transcript of this hearing is of record. In December 2011, the Board again remanded the case. Please note that the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder has been raised by the record. In this regard, in a January 2000 statement, the Veteran indicated that he disagreed with a July 1998 Board decision which denied service connection for both the left and right knees. The claim concerning the right knee was adjudicated by the RO but the left knee issue was not addressed. The Board finds that the January 2000 statement is a claim to reopen the claim for service connection for a left knee disorder. As this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's right knee disorder had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist In this decision, the Board grants service connection for a right knee disorder. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. II. Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he is entitled to service connection for a right knee disability. The Veteran's service treatment records reveal that he had multiple complaints of right knee pain in service. Specifically, January 1980 records reflect that he was treated for right leg pain after a 10 mile march and records dated in February 1980 reflect treatment for right knee pain and swelling. The February 1980 records reflect that the Veteran was diagnosed with chondromalacia in the right knee. After service, a May 1998 magnetic resonance imaging (MRI) report indicated that the Veteran had a focal tear on the medial meniscus and a small joint effusion of the right knee. At the Veteran's April 2002 hearing before the Board, the Veteran stated that his right knee condition was a result of road marching and dropping down on his knees during basic training. The Veteran indicated that he has suffered from knee pain since separation and he that he could not sit or have his knee bent for long periods of time. The Veteran was afforded a VA examination in December 2002. The Veteran indicated that he suffered from recurrent episodes of right knee pain. The Veteran stated that the pain was aggravated by long periods of walking and was increased when climbing stairs. After physical examination, the examiner assessed the Veteran with recurrent right knee pain with prior MRI scan evidence of small irregular tear of the posterior horn of the medial meniscus. The examiner stated that there was a possibility the Veteran's current knee condition was related to the knee condition documented in service although the likelihood did not rise to the level of as likely as not. Therefore, he opined that the it was probably unlikely that his present knee disorder was related to service. The examiner also stated that there was no evidence to show that the Veteran's knee disorder preexisted his active service. At the VA examination dated in April 2008, the Veteran indicated that his knee pain affected his activities of daily living, but he was able to work. After physical examination, the examiner noted that he was unable to find a knee pathology and diagnosed the Veteran with a normal right knee. At the VA examination dated in August 2010, the examiner opined that the Veteran's knee pain was less likely as not to be caused by service. The examiner did state, however, that there was "patellofemoral etiology", which was possibly due to a wear process. A March 2011 private physician's statement from Dr. Winston reflects that the physician reviewed the Veteran's records and past examinations. Dr. Winston stated that it was his opinion that the Veteran's disease progression caused him to have partial disability in his knees. He stated that the origin of the Veteran's disease was at the time of his 10 mile march while in service, and that it has been progressive since that time. The physician also opined that it was at least as likely as not that the Veteran's injury in the military was causative of his partial disability. The Veteran was afforded a VA examination in September 2012. After physical examination, the Veteran was diagnosed with right knee patellofemoral syndrome. The examiner opined that the Veteran entered military service without any preexisting health problems and that the anterior knee pain began in service. Unfortunately, the medical opinions of record are not models of clarity. Nevertheless, there is no disputing that the Veteran entered service with a normal right knee and began experiencing right knee pain in service. With respect to the salient issue of whether or not the Veteran's current right knee disability is related to his active duty service period, the Board finds that after resolving all reasonable doubt in the Veteran's favor, the evidence weighing in favor of the Veteran's claim is in equipoise with the evidence weighing against the Veteran's claim. The Veteran is currently diagnosed with right knee patellofemoral syndrome and treatment records show that he was treated for right knee pain while in service. Although the September 2012 medical opinion is somewhat unclear, when viewed in the light most favorable to the Veteran, the Board interprets this opinion to mean that the Veteran's right knee condition had its initial manifestation during the Veteran's military service, particularly since the examiner states that the Veteran's anterior knee pain began in service, and such knee pain is reported in the Veteran's service treatment records. The Board acknowledges that December 2002 and August 2010 VA examiners opined that the Veteran's current right knee disability was less likely as not related to his period of active duty service; however, these opinions are countered by the equally persuasive March 2011 private opinion and September 2012 VA opinion which both indicate that the Veteran's right knee disability had its onset in service. With respect to the April 2008 VA examiner's opinion, as the examiner did not find a current right knee disability, he provided no opinion one way or the other with respect to the salient issue of whether the current right knee disability (which was diagnosed in all of the other VA examinations) is related to the Veteran's military service. As such, this opinion has no probative value with respect to determining the relationship between the Veteran's current right knee disability and his military service. As such, the only probative medical opinions of record are evenly split in favor and against the Veteran's claim. It follows that after resolving any benefit of the doubt in favor of the Veteran, the claim of entitlement to service connection for a right knee disability is granted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right knee disorder is granted ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs