Citation Nr: 1331724 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-18 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran was scheduled for a video conference hearing before the Board in August 2013. However, after being notified of the scheduled hearing, the Veteran failed to report and did not request a postponement. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral knee tri-compartment osteoarthritis. 2. A bilateral knee disability was not noted at the time of the Veteran's examination, acceptance, and enrollment for military service; and the evidence does not show, clearly and unmistakably that a knee disability preexisted service. 3. The Veteran sustained a bilateral knee injury in service. 4. Symptoms of a bilateral knee disability have been continuous since service separation. 5. The Veteran's current bilateral knee disability is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral knee disability have been met. 38 U.S.C.A. §§ 1131, 1132, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for a bilateral knee condition has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Merits of the Claim The Veteran asserts that his current bilateral knee condition was caused by an injury he sustained during recruit training with the Navy. For this reason, he states that he is entitled to service connection for his condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, osteoarthritis - a form of arthritis - is a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for a bilateral knee disability. A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1131, 1132, 1137; 38 C.F.R. § 3.304(b). Only such conditions as recorded in examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304(b); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Where the disease or injury at issue is not noted at the time of the examination, acceptance, and enrollment for service, the veteran is presumed to have been in sound condition. See 38 U.S.C.A. §§ 1131, 1132, 1137; 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted when VA shows by clear and unmistakable evidence (1) that the injury or disease existed prior to service and (2) that pre-existing injury or disease was not aggravated by service. Id.; see also VAOPGCPREC 3-2003. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Initially, the Board finds that the Veteran has a current diagnosis of bilateral tricompartmental osteoarthritis. The condition was diagnosed during an October 2011 clinical assessment at the VA Medical Center (VAMC) in Houston, Texas, and confirmed during a VA knee examination in February 2012. Next, the Board finds that a bilateral knee condition was not "noted" at the time of the Veteran's examination, acceptance, and enrollment for military service. The Veteran was examined for service entrance in November 1978. His lower extremities received a normal clinical evaluation and no disqualifying defects were found by the examiner. An illustration reveals that the Veteran had a scar above his right knee, but no additional abnormality in the area was shown or discussed. The Veteran submitted a report of medical history in November 1978 and recorded a history of cramps in his legs, but no other significant medical history involving his legs or knees. Within this context, the Board finds that the evidence does not clearly and unmistakably show that the Veteran had a preexisting bilateral knee condition when he entered service. In a February 2012 VA knee examination report, the VA examiner stated that the Veteran's current knee condition "clearly and unmistakably" existed prior to service and added that he had a "preexisting condition" that was not aggravated during service. However, an October 1979 Medical Board report - published contemporaneously with the Veteran's time in service - reached the conclusion that "[the Veteran] is not considered to be unfit by reason of physical disability which existed prior to service." The Medical Board diagnosed the Veteran with bilateral patellae chondromalacia. While the Medical Board report noted that the knee disability existed prior to entrance (EPTE), it was further stated that the Veteran was not considered to be unfit by reason of physical disability which existed prior to service. The Medical Board discharged the Veteran on the basis of not being physically qualified. In the subsequent Statement of Patient Concerning the Findings of a Medical Board, the Veteran affirmed that he was being "discharged by reason of enlisted in error, i.e. failure to meet enlistment physical standards." An option to affirm discharge by reason of a preexisting disability was not selected. The Board finds that the Medical Board report does not constitute undebatable evidence that the knee disability existed prior to service. Other evidence weighing against finding a preexisting disability includes the July 2012 statement of Dr. F. S., in which Dr. F. S. - the Veteran's former high school athletic director and current doctor - reports that the Veteran did not present with knee problems as a high school athlete. Here, the Board notes that the 2012 VA examiner is competent to diagnose and provide medical opinions regarding the Veteran's knee condition. However, the Board finds that his opinion regarding onset is not probative in this case. Specifically, the examiner included a factual basis in his reasoning that included "no evidence of injury in service" and "no evidence of complaint, [evaluation] or treatment for his knees since discharge from service in 1979." As will be discussed below, such findings are inconsistent with the evidence in the Veteran's claim file. As such, the Board does not attribute any probative value to the VA examiner's opinion regarding the onset of the Veteran's bilateral knee condition. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). As such, the weight of the lay and medical evidence supports a finding that the Veteran was in sound condition upon entrance to service. As noted above, the Board finds that the Veteran suffered injury to his knees while serving on active duty. On September 19, 1979, the Veteran complained of left knee pain at a service medical center. Though not documented at the time, the Veteran has since stated that he hurt himself when he stepped into a pothole. See June 2012 VA Form 9. Bilateral knee pain was reported on September 28, October 1, and October 9, 1979, and a formal diagnosis of chondromalacia patellae was recorded on October 11, 1979. The Veteran was discharged on October 19, 1979 after a Medical Board declared a diagnosis of bilateral chondromalacia patellae and recommended discharge by reason of enlistment error. Thus, the evidence demonstrates in-service bilateral knee injury. Finally, the Board finds that the evidence is in equipoise as to the finding that the Veteran had continuous symptoms of a bilateral knee condition after service. The first clearly documented post-service symptoms, complaints or treatment relating to a knee condition is from an October 2011 VAMC radiology report, in which the Veteran was diagnosed with tricompartmental osteoarthritis. At the time of the examination, nearly 32 years after service, the Veteran reported bilateral knee pain since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during the active military service, which resulted in any chronic or persistent disorder). Here, the Board observes that this record follows submission of the Veteran's claim for disability benefits in July 2011. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). While the absence of clear evidence of post-service findings, diagnosis, or treatment for approximately 32 years after service is a factor that weighs against his claim, there is evidence that the Veteran may have reported pain sooner. In a July 2011 VA Form 21-4142, the Veteran indicated that he was seen for swelling pain in his knees by Dr. F. S. in May 2005, June 2006, and September 2008. While VA has received the corresponding medical charts, the Board can neither confirm nor deny that the Veteran was treated for knee pain at those times based on the notes in those charts. However, while there are no entries from September 2008, the Board acknowledges that there are notations for treatment in May 2005, June 2006, and August 2008. Further, during the 2012 VA knee examination, the Veteran reported receiving a cortisone shot "several years ago" that helped alleviate knee pain. Separately, the Veteran stated that his knee condition from service "has gotten worse" on a June 2012 VA Form 9. The Veteran is competent to report a history of knee pain, which lies within the realm of his experience. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous knee pain since service); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, the Board considers the Veteran's testimony credible as it is has been internally consistent and in line with other evidence of record. See Buchanan, 451 F.3d at 1336-37; Caluza, 7 Vet. App. at 511 (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). Specifically, the Veteran's testimony matches the testimony of Dr. F. S., who submitted a letter explaining that the Veteran did not have knee problems before service, as well as medical treatment evidence to corroborate the Veteran's stated history of knee pain treatment in 2005, 2006, and 2007. Given the similarity in symptoms between chondromalacia and arthritis, the Board gives weight to the Veteran's statements that he has suffered continuous, indistinguishable knee pain since service. See e.g., Arnesen v. Brown, 8 Vet. App. 432, 438-39 (1995) (holding that the Board was not arbitrary and capricious in rating a chondromalacia disability as "arthritis") rev'd on other grounds sub nom., Arnesen v. Principi, 17 Vet. App. 522 (2001). As indicated above, the Board finds that there is competent evidence of a relationship between the Veteran's currently diagnosed knee disability and active service. Specifically, the Veteran reported injuring his knees in service resulting in pain and that he has experienced those same symptoms continuously since service separation. See 38 C.F.R. § 3.303(b) (if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection); Walker, 708 F.3d at 1338-40. Indeed, continuous knee pain since service separation was the complaint that lead to a diagnosis of bilateral knee tri-compartment osteoarthritis in October 2011. See Clyburn, 12 Vet. App. at 301; Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). Finding the Veteran credible in this regard, the Board affords the benefit of the doubt to the Veteran that he was seen by Dr. F. S. for knee swelling in 2005, 2006 and 2008. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral knee tri-compartment osteoarthritis have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral knee tri-compartment osteoarthritis is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs