Citation Nr: 1326320 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-18 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from January 1988 to January 2008, to include duty in Iraq; he is retired from active service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case has been remanded on two previous occasions, in April and October 2010, for procedural and evidentiary development. The Veteran appeared at a Videoconference hearing in September 2010. A transcript is of record. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDING OF FACT The Veteran experiences mild bilateral patellofemoral syndrome as a result of his service. CONCLUSIONS OF LAW 1. Service connection for a left knee disability is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for a right knee disability is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires 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 Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain "chronic conditions," such as arthritis, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Only "chronic conditions," as defined by regulation and inclusive of arthritis, can be service-connected solely on the basis of continuity of symptomatology from service to the present (irrespective of the establishment of a causal nexus between a current disability and service). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. §§ 1110, 1131. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the current case, the Veteran has alleged developing disabilities of the bilateral knees as a result of his lengthy period of service in the U.S. Air Force. A search of the service treatment records does not reveal any complaints for the knees specifically; however, it is clear that the Veteran had a very active lifestyle while in active service. Indeed, there are several episodes of shoulder, ankle, and other upper extremity pain (Veteran has service-connected left shoulder and bilateral ankle disabilities) as a result of flag football and basketball participation. While the Veteran did not apparently injure his knee directly while involved in these sporting events, he was clearly participating in exercise activities on a regular basis during his two decades of service to the nation. The RO scheduled the Veteran for a VA examination to evaluate complaints of knee pain prior to his discharge from active military service. The associated report of examination, dated in October 2007 (approximately three months prior to the Veteran's retirement from the Air Force), did not contain a diagnosis of any chronic disability of the knees. Indeed, after radiographic tests were completed, it was determined that there was no pathology and that the X-rays were "normal." Subjectively, the Veteran reported having had bilateral knee pain for the previous five years. That is, the 2007 pre-discharge VA examination serves as an in-service complaint of knee pain. The RO's denial of the claim, essentially, centered on the findings of the October 2007 in-service general VA orthopedic examination. That is, the RO determined that there was no disability present in the bilateral knees, and hence, no disability for which service connection could be granted. The Board, subsequent to the Veteran's Videoconference hearing, remanded the claims for evidentiary development in October 2010. It was determined that the Veteran had identified private medical records which may, potentially, substantiate the allegation of him having a current disability of the knees with causal origins in active service. The Board ordered that attempts be made to locate these records, and also, that a comprehensive VA examination be afforded which addressed both the nature and etiology of any currently present bilateral knee disability. It does not appear as if any private medical records were obtained; however, this lack of compliance with Board instruction is mooted by the findings of the VA examiner (which, as discussed below, allow for a full grant of the benefits sought). Indeed, the VA examination report, dated in November 2010, contains evidence of a current diagnosis of disabilities in the bilateral knees that are related to active service. Specifically, the examiner noted that the Veteran experienced bilateral patellofemoral syndrome which presented as "fairly mild knee pain that started between 7 and 10 to 11 years ago." The Veteran fully conceded that the "pain was fairly mild through the years and he did not need to adjust his activity" as a result of the disorder. Indeed, at the time of the examination, the Veteran was still exercising by running "three or less miles per week," and he was able to do "house work, yard work, and self care." The Veteran worked as a design engineer for radiographic equipment, and he did not report any days missed as a result of knee pain. Moreover, the Veteran was still able to engage in recreational activities such as snowmobiling. With regard to an etiology of the bilateral patellofemoral syndrome, the examiner stated "it is at least as likely as not, 50 % probability, that [the Veteran's] patellofemoral syndrome had its onset while in service." For a rationale, the examiner explained that "this is a common condition in the military with running, etc." That is, the examiner noted that the presentation of the disease pathology is of the type consistent with the active, physical exertion required by military personnel, which would, by necessity, include the Veteran's demonstrated participation in numerous athletic events. The RO's continued denial of the Veteran's claims was based; essentially, on a finding that patellofemoral syndrome of mild severity was not sufficient to establish a diagnosis capable of service connection. Here, the Board must note that VA adjudicators may not substitute their own medical judgment for that of a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). While the Veteran did not submit records demonstrating that he had arthritis (after having alluded to this at the VA examination), he was clearly diagnosed with current disabilities in the bilateral knees (while not arthritis), and those disabilities were linked to the active physical lifestyle shown to have occurred in military service. The examiner noted the complaints of pain in the last several years of service as being credible and consistent with the type of pathology demonstrated by examination. The Veteran did not exaggerate his symptoms, and was forthright and honest in stating that his symptoms are essentially mild noticeable pain that does not cause a significant interference in his daily activities. The diagnosis of bilateral patellofemoral syndrome, however mild in nature, is still a disability capable of service connection, and it was not correct to continue to deny the claims on the sole basis of the pathology not being particularly severe in its presentation or because it does not appear on an X-ray. In this regard, the nature and extent of this disability is not before the Board at this time. Essentially, the Board notes that Veteran reported mild pain in his knees while in active service, and this was recorded at his pre-separation VA examination in October 2007. At that time, no disability was found, and the later evidence of 2010 shows that the Veteran experiences a mild bilateral patellofemoral syndrome that is, at least as likely as not, related to the active lifestyle associated with the Veteran's military service. There is no opinion that is contrary to this finding, and it fully supports the Veteran's credible testimony. Accordingly, the requirements for service connection have been met, and the claims will be granted. ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs