Citation Nr: 1328659 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-36 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran apparently had active duty service from September 1977 to December 1977 in the Army National Guard of Tennessee and from August 1979 to July 1981 in the U.S. Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran submitted a Notice of Disagreement in November 2007 and a Statement of the Case (SOC) was issued in May 2008. In June 2008, the Veteran submitted a substantive appeal which perfected his appeal. A Supplemental Statement of the Case (SSOC) was issued in March 2009. Subsequently, in May 2009, the Veteran submitted a statement that he wished to withdraw his appeal. Rather, the Veteran stated he wished to file a claim for entitlement to service connection for the right knee based on the theory of aggravation. The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). As such, although the RO readjudicated, and subsequently denied, the Veteran's claim in March 2010 as no new and material evidence was present to reopen the claim, the Board finds that the Veteran has perfected the original claim of entitlement to service connection for a right knee disability and will consider all theories of entitlement in this appeal. In August 2011, the Veteran testified before the undersigned Veterans Law Judge, via videoconference hearing. A transcript of that proceeding has been prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, right knee internal derangement was of service onset. CONCLUSION OF LAW Right knee internal derangement was incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for entitlement to service connection for a right knee disability has been granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Merits of the Claim The Veteran's claim essentially includes two theories of entitlement; his right knee disability was aggravated by his military service and/or incurred in service. Governing Rules and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection 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) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has been diagnosed with arthritis of the right knee, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). As such, the Veteran can establish service connection solely based on lay statements of continuity of symptomatology since service. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Turning to the evidence of record, an entrance examination report for the period of service during 1977 is absent from the record. An in-service treatment record dated September 1977 indicates the Veteran complained of right knee pain prior to his entrance into service. He stated he injured his knee earlier that year while playing basketball and twisted his knee twice since the beginning of service (during a scuffle and when stepping in a hole during a mile run). The examiner questioned whether the Veteran had tendonitis or internal derangement. Subsequent examinations revealed the Veteran had full range of motion and was able to walk without aids. Later that month, the Veteran stated his pain had increased and the knee locked in extension, especially after standing in formation. A periodic examination report dated in August 1979 revealed the lower extremities were normal. In May 1980, the Veteran reported that he fell on the knee the previous night. Some swelling was noted with normal range of motion. Possible strained ligaments were noted. A June 1980 in-service treatment record indicated the Veteran sought treatment after injuring his right knee in May 1980 when he fell from a height of 5 or 6 feet. He was diagnosed with a medial meniscus tear. According to a November 2007 letter from the Veteran's private doctor, Dr. T.A.M., the Veteran's right knee had developed significant arthritic changes in the lateral compartment. Dr. T.A.M. reported the lateral side of the right knee might also have a torn meniscus which may be currently aggravating the arthritis. The Veteran was afforded a VA examination in April 2008 where he reported that he initially injured his right knee playing basketball in basic training while at Fort Dix, New Jersey. The Veteran stated that his right knee continued to have intermittent problems such as pain and edema. He reportedly reinjured his right knee by stepping in a hole and twisting his knee. Subsequently, he again reinjured his knee while stationed in South Korea and had repair of a torn ligament. The Veteran stated his right knee has been progressively worse since service and he treats it with nonsteroidal anti-inflammatory medication and limits his activities. He reported using a knee brace regularly to assist in walking. An MRI of the right knee revealed a complete tear of the anterior cruciate ligament with anterior subluxation of the tibia in relationship to the distal femur. There was a horizontal tear of the posterior horn of the lateral meniscus as well. Severe tricompartmental osteoarthritis was also seen. The Veteran was diagnosed with internal derangement of the right knee. The VA examiner opined that the Veteran's right knee was less likely as not caused by, or the result of, injuries sustained while in service. While acknowledging the preexisting and in-service injuries as reflected in the record, the examiner stated that the Veteran was "able to go back to normal duties while in the military. His eventual [separation] was due to a mental health condition, not his knee." According to an April 2010 letter, upon review of the medical records in the Veteran's claims file, Dr. T.A.M. determined it was "apparent to [him] that there was an injury to that right knee when [the Veteran] went on active duty..." Dr. T.A.M. acknowledged that the medical personnel during service were concerned about tendinitis or even internal derangement which is the reason why they performed an arthrogram with a dye injection into the knee. The Veteran continued to experience clicking in the knee and soreness. Dr. T.A.M. cited to the February 2008 MRI which revealed anterior crucitate ligament tear and lateral and meniscus tears in the knee. As such, Dr. T.A.M. concluded "it appears to me as though there is definite evidence that from injuries sustained many years ago, there has been a gradual progression and worsening of the situation in the right knee that in my opinion is going to require surgical intervention." In addition, Dr. T.A.M. submitted a letter in September 2010 that upon review of the Veteran's in-service and post-service treatment records, the Veteran's current right knee condition was directly related to his military service. He indicated that the Veteran stated that he injured his knee while in a high school basketball game but that the injury was relatively minor and resolved prior to his injury in service. Dr. T. A. M. further stated that in his opinion the right knee injury playing high school basketball was not related to the Veteran's present condition. There was no notation of this in the Veteran's entrance examination in August 1979 and he was able to complete his full tour. Finally, in August 2011, the Veteran testified before the undersigned Veterans Law Judge that he injured his knee while he was in the eighth or ninth grade but did not have any problems when he entered basic training. He stated he enlisted in 1979 and was in sound condition. He again reported that he initially injured his knee while stationed in Fort Dix when he fell into a hole. He clarified that the injuries sustained while in high school and during his National Guard duty resolved. The Veteran stated that the incident when he fell of a wall and severely injured his knee was the beginning of his current knee disability. In light of the totality of the evidence of record, the Board finds that the Veteran's claim for entitlement to service connection for a right knee disability should be granted. The evidence before the Board shows that there is no record of a physical examination at the time of the Veteran's entrance onto active duty in September 1977. Approximately two weeks following service entrance, the Veteran complained of right knee pain following twisting his knee on two occasions since service entrance. He gave a history of a preservice knee injury while playing basketball, but that injury apparently healed, as he noted that the knee pain recurred following the two inservice knee injuries. At that time, tendonitis or internal derangement was suspected. His medical treatment continued, with physical therapy and reduced physical training. In mid-October the assessment was torn ligaments. During his next period of service, possible strained ligaments were assessed in late May 1980, following another injury. A medial meniscus tear was noted. On physical examination for separation in June 1981, no knee disorder was noted. Medical opinions have been advanced both in support of and against a causal connection between the Veteran's military service injuries and his current internal derangement of the knee. The Board finds that despite the negative etiological opinion from the February 2008 VA examiner, the Board cannot ignore Dr. T.A.M.'s opinion that the Veteran's right knee disability is related to his military service. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Here, the Board finds that Dr. T.A.M.'s opinion is more probative as it is the most thorough and factually supported opinion of record, given that it is consistent with other evidence of record and included review of the claims file. This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale based on medical principle. Id. The Board acknowledges the Veteran's lay history of his disability. He has testified under oath at the Board hearing that he did not experience any residuals of the injuries sustained prior to service and during basic training with the National Guard. He stated that it was following his knee injury in Korea that he continued to experience ongoing symptomatology. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002)("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that a claimant exhibited certain symptoms at particular time following service). In view of the totality of the evidence, including the Veteran's documented in-service right knee injuries, current findings of disability, and the positive nexus opinion of record, the Board finds that the right knee internal derangement is causally related to the Veteran's active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right knee internal derangement is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs