Citation Nr: 1320863 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-13 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to December 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2010, a Decision Review Officer (DRO) had a conference with the Veteran. In April 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In August 2012, the Board reopened and remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to attempt to obtain the Veteran's service records and to afford the Veteran a VA medical examination. The action specified in the August 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current left knee disability to include degenerative joint disease is shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a left knee injury to include degenerative joint disease have been met. 38 U.S.C.A. § 1110, 1112 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Degenerative arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 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) (2012). Initially, the Board notes that the Veteran's service treatment records and service personnel records are missing and presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC). The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. Here, the Veteran is seeking service connection for residuals of an injury to the left knee. In his written and oral testimony, the Veteran has reported that during basic training at Lackland Air Force Base from November 1950 through March 1951, he slipped and fell, twisting his knee so severely he required hospitalization. As noted above, the Veteran's service treatment records have been lost or destroyed and therefore it is impossible to corroborate the Veteran's claim that he received treatment for a left knee injury in service. A request for a search of alternate medical sources was initiated by the VA. NPRC responded in March 1999 that a search of the sick reports covering the period from November 30, 1950, through March 1951, from the squadron to which the Veteran was assigned, showed no remarks regarding injury of the Veteran. A request for a search for the Veteran's medical records from the VA Medical Center, Lakeside, for 1955, when the Veteran claimed he received treatment after discharge, also met with negative results. At a May 1996 VA orthopedic examination, the Veteran reported that in 1951, while jumping over a ramp, he landed and twisted the left knee. He indicated that he was placed in traction and his knee was aspirated to relieve swelling. He related that he had had a problem on and off with the knee until two years ago when he started to have more frequent problems with the knee giving out on him. He reported that two months ago tests had shown degeneration of the cartilage and that some arthritis had set in. The VA examiner diagnosed the Veteran with a history of injury to the left knee with damage to the cartilage due to internal derangement, now with instability of the left knee, pain on weight bearing, and limited range of motion. Associated x-rays showed evidence of degenerative joint disease (DJD), possible partial medial collateral ligament calcification, and mildly displaced old fracture of the proximal medial tibial shaft. Recent VA treatment records reflect ongoing treatment for bilateral knee pain and degenerative joint disease. The Veteran underwent a total knee replacement surgery in January 2009. In an August 2004 statement, a VA physician opined that it is at least as likely as not that the Veteran's arthritis in his left knee was due to an event that occurred long ago. However, no rationale for this conclusion was provided. At a Travel Board hearing in April 2012, the Veteran testified that after his initial left knee injury in 1951, he was also treated for left knee complaints in 1954 while serving in French Morocco. The Veteran's DD-214 shows that he has been credited with more than a year of foreign service, but the location of this service cannot be confirmed. The Board does note, however, that an internet search shows that the United States Air Force (Strategic Air Command (SAC)) did operate four bases in Morocco (Boulhaut, Sidi Slimane, Nouasseur, and Ben Guerir) in the 1950's which coincides with the Veteran's period of active service. In support of his claim, in April 2012, the Veteran submitted copies of what appears to be old photographs whose content appears to be consistent with the architecture and climate of northern Africa. He stated that they were taken while on assignment in Morocco. Those photographs, when considered along with the other evidence of record, raise a reasonable possibility that he was stationed in French Morocco. In October 2012, the Veteran was afforded a VA examination. The Veteran again reported that during basic training in 1951 he sustained a twisting injury to his left knee when he jumped and then slipped on ice. Following the injury, he was unable to bear weight and was transported to the hospital at Lackland Air Force Base where he remained for several weeks. He reported that his leg was elevated and fluid was drained from it several times. He also reported additional treatment in 1953 while still in service and in 1956 at a VA research hospital following his discharge. He could not recall what disorder he was diagnosed with in service. He described progressively worsening pain in the years following service, culminating in a total knee arthroplasty in 2009 with significant improvement. However, he continued to report intermittent knee pain and stiffness. The examiner opined that it is at least as likely as not that the Veteran's claimed left knee condition was caused by his in-service injury, although he noted that the absence of the Veteran's medical records made it very difficult to formulate an opinion with any degree of medical certainty. He observed that the Veteran has degenerative joint disease in the right knee as well as the left knee and that degenerative joint disease is a common condition for someone of the Veteran's age and is usually not associated with a previous injury. However, he also noted that the Veteran has valgus alignment of the lower extremity which is unusual in a male with no rheumatoid arthritis, as well as patella alta, which predisposes the Veteran to a patellar dislocation. The examiner noted the repeated aspiration of the knee that the Veteran described could have been required to treat a hemarthrosis which occurs after patellar dislocations. While the examiner observed that currently hospitalization would not be required for a patellar dislocation, treatment protocols were quite different in 1951. He went on to state that patellar dislocation can cause osteochondral injury which could cause post-traumatic arthritis. The examiner noted further that the Veteran stated that he was seen for a left knee condition while in the service in 1953 and then in the private sector in 1956 without any additional injury. The examiner stated that this would suggest chronicity of the left knee condition dating from the time of the 1951 injury. Additionally, he observed the Veteran denied any post-service left knee injury. He concluded by opining that the Veteran's left knee degenerative joint disease was at least in part post-traumatic secondary to the Veteran's in-service injury, assuming that this injury took place. After carefully reviewing the evidence of record, the Board finds that entitlement to service connection for residuals of a left knee disability is warranted. While the Board notes that the Veteran's alleged injury cannot be corroborated by any service records, given the physically demanding nature of basic training, the type of injury the Veteran describes is not inconsistent with the nature of his service at that time and the Veteran is competent to describe the observable details of an injury he sustained in service, as well as the symptoms he has experienced since then. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the Veteran appears to be a credible historian. His account of his in-service injury has generally been consistent for almost two decades, without significant inconsistencies that might suggest that the Veteran has poor memory or is fabricating his story. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Finally, the Board notes that the October 2012 VA examiner concluded that the Veteran's current left knee condition is at least as likely as not due to his in-service injury. Based on the Veteran's description of the nature of his in-service injury and treatment, the examiner opined that the Veteran could have suffered from patellar dislocation as a result of his in-service injury, which can lead to the development of traumatic arthritis. The VA examiner's discussion of his rationale is extremely thorough and is consistent with the medical evidence of record. Accordingly, the Board finds this opinion to be highly probative. As the Veteran has presented competent and credible evidence of an in-service injury to his left knee, as well as continuity of symptomatology, and the October 2012 VA medical examiner has opined that the Veteran's current left knee disability is related to his military service and to those continuous symptoms, entitlement to service connection for residuals of a left knee injury to include degenerative joint disease is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2010); 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. (Continued on the next page) ORDER Entitlement to service connection for residuals of a left knee injury to include degenerative joint disease is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs