Citation Nr: 1319847 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-18 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to December 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for bilateral knee arthritis. In August 2009 the Board remanded the case to the RO for the development of additional evidence. In September 2011 the Board denied service connection for a bilateral knee disorder. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012 the Court granted a joint motion from the Veteran and VA to vacate the September 2011 Board decision and remand the case. In April 2013 the Board remanded the case to the RO for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. Left knee patellofemoral syndrome became manifest during service, continued after service, and progressed to degenerative joint disease. 2. Right knee patellofemoral syndrome became manifest during service, continued after service, and progressed to degenerative joint disease. CONCLUSIONS OF LAW 1. Left knee patellofemoral syndrome and degenerative joint disease were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Right knee patellofemoral syndrome and degenerative joint disease were incurred in service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Board is granting the benefits sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating his claims. The Veteran essentially contends that chronic or recurrent left and right knee disorders began during service, and continued and progressed after service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, on his October 1976 service entrance examination the Veteran's lower extremities were normal. Shortly thereafter, in February 1977, he was seen for pain and swelling in both knees. The treating clinician noted evidence of tenderness over both patellae. X-rays of both knees showed no evidence of fracture. The treating clinician's impression was chondromalacia. In January 1978 the Veteran was seen at sick call reporting a nine month history of swelling and pain in both knees with running or prolonged marching. The treating clinician observed no signs of swelling or discoloration, and provided an assessment of possible water on the knees. X-rays of both knees were negative for bony pathology. In a September 1979 medical history the Veteran checked yes for a history of cramps in his legs. On the report of a September 1979 medical examination the examiner did not address the condition of the Veteran's lower extremities. The claims file contains records of post-service medical treatment from 2001 forward. In private treatment in May 2001 the Veteran reported that he was in a fight. He indicated that he had abrasions on his right knee, left shoulder, and left foot and that his left knee was especially painful. The treating clinician noted swelling and abrasion of the right knee. In March 2005 the Veteran reported right knee pain, swelling, and popping without recent injury. He related history of old injury in the Army with swelling and pain. He indicated that the knee had been doing well until recently. The treating physician noted right knee swelling and crepitus, without joint laxity, and left knee crepitus. Right knee x-rays did not show bony abnormality. The physician's impression was possible cartilage problems. In April 2005 the Veteran reported that his right knee had decreased pain and swelling but had continued popping and feeling as though the knee were going to give way. The physician noted ongoing crepitus. In May 2005 right knee MRI showed moderate effusion, degenerative thinning of cartilage without tearing, and apparently intact ligaments. Left knee MRI showed an effusion and a small Baker's cyst with no cruciate or meniscal tear. In July 2005 a treating orthopedic surgeon reported that the Veteran had bilateral knee pain with a little bit of arthritis. In treatment in November 2005 the Veteran reported ongoing knee pain. On VA examination in December 2006 the examining physician reported having reviewed the Veteran's claims file. The Veteran reported that he began to have symptoms in both knees during service in basic training. He stated that presently he had bilateral knee pain, swelling, and subjective instability. The examiner observed motion of each knee from 0 to 130 degrees with very mild crepitus with motion. There was moderate effusion in each knee. There was tenderness to palpation of the patellofemoral joints bilaterally. The knees were stable on testing. The Lachman test results were 1A bilaterally. The examiner's diagnosis was mild bilateral degenerative joint disease. The examiner expressed the opinion that it is less likely than not that the Veteran's bilateral knee arthritis was related to his service. The examiner explained that during service the Veteran did not have a particular injury and experienced patellofemoral pain. The Veteran had VA treatment in January and February 2007 for intense right knee pain, with an inability to fully extend that knee. He reported a history of knee pain beginning in service. A treating physician provided an impression of patellofemoral syndrome with possible meniscal tear. The Veteran began VA physical therapy for his right knee pain. In a June 2007 statement the Veteran reported that he had knee pain during service that had continued since then and become worse in the last couple of years. In August 2008 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. He reported that he had episodes of pain and swelling in his knees during service. He indicated that the knee pain and swelling began following demanding training that required carrying heavy gear up a steep hill. He stated that about two years after service he had private treatment, including a cortisone shot, for knee symptoms. He indicated that he was unable to get records of that treatment. He reported that over the years he addressed knee symptoms by using ice and heat pads, and that more recently he saw a physician who gave him cortisone shots. He indicated that he wore knee braces. In the July 2012 joint motion for remand, the Veteran and VA noted that the report of the December 2006 VA examination did not address whether the Veteran's knee symptoms during service continued after service nor whether there was evidence of any knee ligament disorder, and that the September 2011 Board decision did not address the credibility of the Veteran's report that he had treatment for knee pain about two years after service. On VA examination in April 2013, the examiner reported having reviewed the Veteran's claims file. The examiner found that the Veteran had degenerative joint disease and patellofemoral syndrome in each knee. The examiner stated that the records and the 2013 examination did not show any chronic ligament disorder of either knee. In response to a request for an opinion, the examiner checked the space indicating that it is less likely than not that any knee ligament disorder is proximately due to or the result of a service-connected disorder. The examiner stated that service treatment records show that the Veteran had patellofemoral chondromalacia which caused swelling. The examiner noted that medical literature showed that the natural progression of patellofemoral syndrome is to degenerative joint disease such as the Veteran has in both knees. The examiner noted that the 2006 VA examination report did not account for those findings. Here, the Board notes that the Veteran's accounts regarding his history of knee symptoms have been consistent. The Board thus accepts that the Veteran had knee treatment in the years immediately following service. There is also evidence showing bilateral chondromalacia patella or patellofemoral syndrome disorder during service and continuity of those disorders after service. That evidence helps to balance the span of years between service and the first post-service medical documentation of knee disorders. Finally, there is competent medical evidence in support of the claim. The VA clinician who examined the Veteran in 2013 indicated that the Veteran had chondromalacia or patellofemoral syndrome during and after service, and that chondromalacia or patellofemoral syndrome naturally progresses to degenerative joint disease such as that eventually diagnosed in the Veteran's knees. While the examiner indicates that it is less likely than not that the current disability is due to service, this appears to be a typographic error because the examiner's analysis supports the claim. Thus, rather than remanding the matter for a supplemental opinion, the Board resolves reasonable doubt in favor of the Veteran's claim. Accordingly, the Board grants service connection for left knee and right knee patellofemoral syndrome and degenerative joint disease. ORDER Entitlement to service connection for left knee patellofemoral syndrome and degenerative joint disease is granted. Entitlement to service connection for right knee patellofemoral syndrome and degenerative joint disease is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs