Citation Nr: 1332108 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-15 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 1994 to May 2008. This matter was received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. It is on appeal from an April 2009 rating decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's current right knee patellofemoral syndrome began during service. CONCLUSION OF LAW The criteria for service connection for right knee patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in his December 2008 claim and August 2009 notice of disagreement, the Veteran contends that he was diagnosed with and treated for patellofemoral syndrome of the right knee in service in 1998 and 1999. He asserts that at that time he was told that the natural cushion between his femur and patella was deteriorating, which was causing pain at the bottom of his patella with activity, that there was no cure for patellofemoral syndrome, and that he could only strengthen the muscles around his knee. He further asserts that he was in physical therapy for a time, but that it did not help. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be granted. Initially, the Board notes that only service treatment records dated from November 2005 to March 2008 have been associated with the claims file and that, after making attempts to obtain further treatment records, the RO has determined that such records are unavailable. Where, as here, the claimant's service medical records have been destroyed or lost, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). October 2012 private physical therapy records reflect that the Veteran was treated for bilateral knee pain and that the diagnosis was bilateral patellofemoral syndrome. The Board notes that service treatment records dated from November 2005 to March 2008, while repeatedly showing treatment for left knee pain and problems including arthropathy and surgery to remove a bone spur, do not indicate any complaints or problems pertaining to the right knee. However, given the Board's heightened duty to consider the benefit of the doubt, in light of the unavailability of a significant portion of the Veteran's service treatment records, the Board finds the Veteran's assertion of diagnosis and treatment for patellofemoral syndrome of the right knee in service to be credible. In this regard, the Board notes that the Veteran filed his claim for service connection in December 2008, approximately seven months following his discharge from service, and in such claim specifically requested service connection for patellofemoral syndrome and asserted that he had developed the disorder in May 1998. Moreover, the Veteran has submitted medical evidence of current treatment for patellofemoral syndrome of the right knee. The nature and exent of the disablity is not before the Board at this time. Given the above, the Board finds that the evidence pertaining to whether the Veteran has current right knee patellofemoral syndrome that began in service is at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that current right knee patellofemoral syndrome began in service. Accordingly, service connection for right knee patellofemoral syndrome must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Finally, as provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for right knee patellofemoral syndrome is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs