Citation Nr: 1332510 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-00 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active military service from February 1993 to November 1993 and again from January 2002 to July 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for a Board video hearing in August 2013, but did not appear and did not indicate any desire to reschedule. The Veteran's hearing request is, therefore, deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In September 2008, the Veteran raised the issues of entitlement to service connection for bilateral hallux rigidus and depressive disorder, including as secondary to the Veteran's service-connected bilateral retropatellar pain syndrome. To date, the RO has not adjudicated these claims and, therefore, the Board does not have jurisdiction over them and they are referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995). The Board also notes that the Veteran previously filed a claim for temporary 100% convalescence benefits related to knee surgery. The claim was ultimately denied because the underlying knee disability was not service connected at that time. In light of the disposition of this claim granting service connection for that knee disability, the RO may deem it prudent to reconsider the claim for temporary 100% convalescence benefits. FINDING OF FACT Affording the Veteran the benefit of the doubt, the Veteran's bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis, are etiologically related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon consideration of the evidence of record, the Board grants entitlement to service connection for bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis. The Board notes that the Veteran is already service connected for bilateral retropatellar pain syndrome and, therefore, the grant of this claim may not increase the benefits to which the Veteran is entitled. See, e.g., Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (prohibiting separately rating the same symptoms merely because those symptoms have multiple causes). In establishing her claim, a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. The benefit of the doubt is afforded the claimant with respect to each issue material to the determination. Id. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The record contains extensive VA and private medical records documenting that the Veteran has suffered from meniscus tears in the right knee and a popliteal cyst (Baker's cyst) in the right knee. Moreover, the Veteran has reported her private physician's diagnosis of bilateral tendonitis. Therefore, the Board finds that the Veteran currently has knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis. With respect to an in-service event or injury, the Veteran has asserted that she first experienced pain and symptoms relating to her current knee disabilities during her active duty service in Qatar. See, e.g., December 2008 Notice of Disagreement. The service treatment records support this contention. See, e.g., Medical Evaluation Board Narrative Summary (noting that the Veteran "report[ed] no problems with her knees prior to 2002 while she was deployed to Kuwait and Qatar" and that "[c]hronic swelling and pain has been noted consistently"). Further, the Veteran asserts that she strain on her knees due to twisting, turning, and lifting while on active duty, but has not experienced any knee trauma since leaving active service. See, e.g., December 2008 Notice of Disagreement. Granting the benefit of the doubt to the Veteran, this evidence establishes that she experienced knee trauma during her active duty service. Gilbert, 1 Vet. App. at 53-56. The only remaining issue, then, is whether her current bilateral knee disabilities are etiologically related to her conceded in-service injury. Shedden, 381 F.3d at 1166-67. A Veteran is competent to report a diagnosis that is later confirmed by clinical findings or a contemporary diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran has asserted that Drs. "M." and "O." both rendered etiological opinions relating her current knee disabilities to her active duty service. See, e.g., Notice of Disagreement dated December 2008; VA Form 9 dated December 2009. The Board finds that the Veteran's report of her private physician's opinions, in conjunction with the medical record as a whole and the Veteran's lay statements regarding the onset and continuous duration of her symptoms, provide sufficient evidence to permit the Board to conclude that the bilateral knee disabilities claimed here are etiologically related to the Veteran's active duty service. See, e.g., Notice of Disagreement dated December 2008 (noting in-service knee trauma caused by twisting, turning, and lifting); May 2004 Letter from Dr. O. (indicating cystic lesion related to "prior trauma"); October 2008 Letter from Dr. M. (opining that Baker's cyst was "a direct result of the meniscal pathology"). As previously noted, the Veteran is already service-connected for bilateral retropatellar pain syndrome. The symptoms the Veteran has suffered in connection with her service-connected knee disabilities are similar to, if not identical to, the symptoms that led to diagnosis of her currently non-service connected knee disabilities. Thus, if the Board were to deny or remand this case, the VA would be required to distinguish between the symptoms and causes of her currently service-connected bilateral knee condition and her claimed bilateral knee disabilities. Given the evidence of record and the unlikelihood of obtaining an opinion on remand that could rule out an etiological connection with the requisite degree of medical certainty, the Board finds that the interests of justice and economy are best served by making a decision on the available evidence. Further, making such a distinction would serve no purpose as it would be impossible to distinguish between the service connected and non-service connected disabilities in any future evaluation of any limitation of function of the knees as a whole (it is simply problematical for an examiner to distinguish between a service-connected and non-service connected knee disability when range of motion or instability is measured). In this regard, the Board has considered the issue of whether the Veteran actual has tendonitis in either knee and/or if this is simply a manifestation of the Veteran's service connected "retropatelar pain syndrome". However, the Board finds that any effort to make such a determination would only delay the adjudication of the Veteran's case. The critical question is the nature and extent of the Veteran's "bilateral knee disability" as a whole and how it impacts her ability to function in a work environment. The Board concludes that the evidence of record relating to the etiology of her claimed knee disabilities is, at least, in equipoise and, therefore, the Veteran is entitled to the benefit of the doubt on this issue. See Gilbert, 1 Vet. App. at 53-56. Because the Board has determined that the evidence of record establishes each of the elements of a direct service connection claim, the Board concludes that the Veteran is entitled to service connection for her claimed bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis. In this regard, it is important for the Veteran to understand that this decision will not necessary provide her with additional VA compensation, as knee disabilities are evaluated based on limitation in function, not on the number of disabilities associated with each knee. The nature and extent of the bilateral knee disability is not before the Board at this time. ORDER Entitlement to service connection for bilateral knee disabilities, to include right knee meniscus tears, Baker's cyst in the right knee, and bilateral tendonitis, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs