Citation Nr: 1323780 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-19 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant and R.S. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to October 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 and December 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran testified before the undersigned Veteran's Law Judge at the RO. A transcript of the hearing is included in the claims file. The Veteran's representative attached VA treatment records to the June 2013 informal hearing presentation and did not waive RO review. These records were not uploaded to Virtual VA and are not attached to the claims file. Therefore, it is uncertain whether the RO reviewed these records. Despite this, the Board is granting the Veteran's claim in full. Therefore, there is no prejudice to the Veteran. When this case was before the Board in June 2012, it was remanded for further development. It is now before the Board for further appellate action. FINDINGS OF FACT The Veteran's currently diagnosed bilateral chondromalacia of patella cannot be satisfactorily disassociated from his active duty military service. CONCLUSION OF LAW Bilateral chondromalacia of patella was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his claim in May 2008. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. 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 full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran asserts that he has a current bilateral knee disorder that had its onset in service. In particular, the Veteran contends that excessive running in military boots damaged his knees. See Veteran's statement dated in June 2010. To establish service connection, the Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to current disability, VA treatment records show a history of complaints of knee pain. See VA treatment record dated in March 2009, September 2009, March 2010. Due to the Veteran's reports of pain and locking of his knee, the Veteran received an MRI in June 2009. The MRI report stated that it could not exclude a small cyst involving the distal aspect of the posterolateral band. Otherwise the findings were unremarkable. The Veteran received a VA examination in December 2010. During the examination, the Veteran reported that he had bilateral knee pain for the last four and half years. He reported symptoms of knee pain, weakness, stiffness, giving way and lack of endurance. Upon examination, the Veteran had full extension and flexion of his knees. The examiner concluded that there was no pathology detected to render a diagnosis of bilateral knee condition. The Veteran's MRI as well as x-ray of both knee joints were normal. Since that time, there are now VA treatment records and MRI evidence showing chondromalacia of the Veteran's knees. A May 2012 MRI shows chondromalacial changes of the patella and also the medial and lateral tibial plateau. See May 2012 VA treatment record. In May 2012 and June 2012 treatment records, a VA physician assistant diagnosed the Veteran with bilateral knee pain with patellofemoral syndrome. In a July 2012 VA treatment record, a VA physician, Dr. C., found that bilateral patellofemoral pain, chondromalacia of the patella was probable. Upon examination, Dr.C. noted that the patellofemoral grind test was positive with crepitus in the patellofemoral joint of the right knee. The Veteran also had medial facet joint tenderness. Examination of the left knee was similar with less crepitus in the patellofemoral joint and less tenderness along the medial facet of the patella. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowski v. Shinseki, WL 3455655 (Jul. 10, 2013). Resolving all doubt in the Veteran's favor, and in light of this new evidence from the VA, element (1) of the three-part test for service connection is indeed satisfied. With respect to element (2), in service disease or injury, the Veteran's service treatment records do not show complaints or treatment for the Veteran's knees. Despite this, the Veteran has consistently reported that his knee pain began during his military service. See Veteran's statement dated in June 2010; see also, April 2012 hearing transcript, page 3. The Veteran has also explained that he had considered reenlisting and thought that he should not report any knee problems as this may make reenlistment more difficult. See Veteran's statement dated in June 2010. The Veteran also submitted a statement from a fellow soldier, R.T., who explained that the Veteran complained of knee pain ever since a June 2006 physical training exercise. See statement by R.T. dated in June 2010. R.T. explained that he witnessed the Veteran unable to finish physical training exercises or to run more than half a mile because his knee pain was so bad. Id. R.T. also noted that the Veteran often talked about reenlisting and was afraid to seek treatment for his knee in service in fear of ending his military career. Id. The Veteran and R.T. are certainly competent to attest to observable symptoms, experiences, and witnessed events. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds no reason in the record to doubt the credibility of their recollections. The circumstances of his claimed in-service injury due to running are indeed plausible. Based on this lay evidence, the Board resolves all doubt in the Veteran's favor and finds that at the very least, the in-service incurrence of a knee disorder is in fact demonstrated. Shedden element (2) is therefore satisfied as well. With respect to crucial element (3), nexus or relationship, the available opinions will be summarized below. The Veteran submitted a statement dated in March 2010 by his family physician, Dr. L. Dr. L. opined that that the Veteran's knee condition more likely than not originated while he was engaged in military service. See Dr. L.'s letter dated in March 2010. Dr. L. provided no further explanation or rationale for his opinion. In a December 2010 VA examination report, Dr. U. explained that there was no medical opinion to provide because the Veteran has no bilateral knee condition. In July 2012, a VA physician, Dr. C., stated that bilateral patellofemoral pain, chondromalacia of the patella was probable. Dr. C. noted that the Veteran ran daily while in the Marine Corps, alternating between three to four miles per day and 8 miles per day. The Veteran reported to Dr. C. that his knee problems began during service and have persisted ever since he was discharged. Dr. C. opined that the Veteran's chondromalacia of the patella probably is related to excessive running while in the Marine Corps. The Veteran has also reported knee pain since June 2006 and that he has experienced no injury since his discharge. See Form 9 dated in April 2009. In light of (1) the Veteran's competent and credible testimony [to his VA physician] that his bilateral knee pain began during service; (2) the competent and credible testimony of R.T. noting that he saw the Veteran unable to run due to his knee pain in service; (3) that the Veteran has been diagnosed with bilateral chondromalacia of patella by a VA physician assistant and physician (4) the MRI evidence showing chondromalacial changes of the patella and also the medial and lateral tibial plateau, and (4) the July 2012 VA physician opinion that the Veteran's current disorder is probably related to excessive running during service, the Board finds Shedden element (3) is satisfied, and the benefit sought on appeal is allowed. ORDER Service connection for bilateral chondromalacia of patella is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs