Citation Nr: 1321748 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-50 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to September 2005, with a confirmed period of active duty for training (ACDUTRA) from January 1973 to May 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in July 2011. A transcript of the hearing is of record. In February 2012, the Board remanded the issue on appeal. Pursuant to the February 2012 Remand, the RO was instructed to request outstanding treatment records and obtain a VA examination to ascertain the nature and etiology of any current right knee disability. Although the Board finds that the VA opinion obtained does not adequately address all of the questions outlined in the Remand, because the Board is granting in full the benefits sought on appeal, that procedural error is deemed to be non-prejudicial to the Veteran. FINDINGS OF FACT The Veteran has a current right knee disability, diagnosed as a right knee meniscus tear, status post partial arthroscopic meniscectomy, that is etiologically related to active duty. CONCLUSION OF LAW A right knee disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision issued by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for entitlement to service connection for a right knee disability is being granted. Therefore, any error was committed with respect to either the duty to notify or the duty to assist was harmless and need not be further considered. The Veteran contends he has a right knee disability due to repeated jogging activities in service. VA treatment records show a diagnosis of a right knee meniscus tear, status post arthroscopic meniscectomy. The Board finds that the evidence supports the claim. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247 (1999); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering in-service incurrence, the Board has considered that the service medical records do not confirm that the Veteran suffered from a right knee disability. In fact, the Veteran's August 2005 separation examination noted a normal clinical evaluation of his lower extremities. Post-service records first show treatment associated with the right knee in January 2006, a few months following separation from service. The Veteran underwent a partial medial meniscectomy of the right knee in April 2006, less than one year following separation from service. The Veteran essentially asserts that his right knee disability is related to jogging and running activities in service, including three to four miles per day runs for over 25 years. He testified at his July 2011 BVA Hearing that the wear and tear over that period of time, and his age and doing physical fitness tests wore down his knee. The service personnel records confirm that Veteran was on active duty from November 1983 to September 2005. The Board finds it consistent with the circumstances of his service for him to have been required to jog and or run for physical training during his active duty service. 38 U.S.C.A. § 1154 (West 2002). Therefore, the Board finds it is reasonable to assume that the Veteran ran or jogged while performing his duties during his active duty service, and that he would have been susceptible to knee problems. The weight of the competent evidence of record shows that the currently-diagnosed right knee disability was incurred in active service. An April 2012 VA examiner considered the Veteran's claim. The examiner noted that it would be resorting to mere speculation to opine whether the Veteran's right knee meniscus tear, status post partial arthroscopic meniscectomy was related to service. The examiner stated that there was no documentation of a right knee disability in service and the Veteran had stated that although he had been experiencing right knee pain in active duty he had not sought any medical attention for it. The examiner noted that according to medical literature, meniscus tears were usually caused by twisting or turning quickly, often with the foot planted while the knee was bent. Tears could occur when lifting something heavy or playing sports. As a person ages, the meniscus gets worn. That can make it tear more easily. The VA examiner initially opined that documentation of the right knee meniscus condition occurred after separation from active duty, and the mechanism of injury could have been proximate to the first documented medical evaluation for the right knee. The Board notes that a review of the claims file shows no post service knee injury prior to his April 2006 surgery. Significantly, the VA examiner noted that it was also possible that the Veteran's meniscus already had minor tears previously while on active duty related to the history of repeated jogging activities of three to four miles per day, and then became worse after separation. There are no other opinions of record. Although the VA examiner provides an essentially negative finding, the Board finds that the opinion, when read in a light most favorable to the Veteran, shows that his current right knee disability was likely caused in some part or to some degree by his in-service exercise. The Board is making a credibility determination to concede the Veteran's in-service running and jogging activity and that he experienced knee pain during service, which necessitated treatment shortly after separation from service. In giving due consideration to the places, types, and circumstances of his service, in conjunction with a favorable reading of the April 2012 VA opinion, in addition to his credible hearing testimony, the Board finds that the evidence supports a grant of service connection for a right knee disability. The Board notes that the Veteran has alternatively argued that his right knee disability is secondary to a service-connected right foot disability. Nevertheless, because this opinion is granting service connection for his right knee disability, a discussion as to whether secondary service connection is warranted is moot. ORDER Entitlement to service connection for a right knee meniscus tear is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs