Citation Nr: 1333072 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-01 422 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from May 1963 to May 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). Subsequent to this decision, the Veteran moved to Colorado, and the Denver RO has assumed jurisdiction over the claim. In November 2012, the Board remanded the issue currently on appeal, along with the Veteran's claims of entitlement to service connection for degenerative joint disease of the lumbar spine, degenerative joint disease of the cervical spine, and a right knee disability, for additional development and consideration. In February 2013, the Appeals Management Center granted the Veteran's claims of entitlement to service connection for degenerative joint disease of the lumbar spine, degenerative joint disease of the cervical spine, and a right knee disability, which represents a full grant of benefits sought. As such, these issues are no longer on appeal. As was also noted in the November 2012 Board remand, in various letters to the RO, the Veteran has asserted that he suffers from headaches and shoulder pain that he attributes to his active service. In more recent letters, he also stated that his PTSD, currently rated at 30 percent, is more severe. To date, no action has been taken on these claims. Thus, the issues of entitlement to service connection for headaches and shoulder pain, and entitlement to a disability rating in excess of 30 percent for PTSD, have been raised by the record, but have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran has left knee strain with patella shaving that is attributable to his active military service. CONCLUSION OF LAW Left knee strain with patella shaving was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a left knee disability, which he reports is due to injuries sustained as a result of his combat service and during parachute jumps while in the military service. 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, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The record shows that the Veteran participated in combat while serving in Vietnam because he was awarded a Combat Infantryman Badge. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In this case, the Board finds evidence that the Veteran currently suffers from a left knee disability. The Veteran underwent a VA examination in September 2009, at which time he was diagnosed as suffering from left knee strain. The January 2013 VA examiner provided a diagnosis of post-operative patella shaving of the left knee. A review of the Veteran's service treatment records does not show that he complained of problems pertaining to his left knee during his active service. The Veteran, however, contends that he suffered from pain in these areas during his active service, though he did not seek treatment for that pain. Specifically, the Veteran stated that he made more than 50 jumps from helicopters, which resulted in various injuries. The Veteran reported that his knees began hurting during jump school. Importantly, the Board notes that the Veteran's DD Form 214 shows that he also received a Parachutist Badge in addition to the Combat Infantryman Badge. In April 1980, the record shows the Veteran injured his left knee while working and suffered an osteochondral fracture to the left knee. He underwent a medial arthrotomy and was discharged. Thus, there is some evidence of an intercurrent injury. The September 2009 VA examiner, in attempt to resolve the issue of etiology for each of the Veteran's claims, determined that she could not resolve this issue without resorting to speculation. However, as indicated in the Board's November 2012 remand, she offered no rationale for why she could not resolve these issues without resorting to mere speculation. As such, the Veteran underwent an additional VA examination in January 2013 on the determinative issue of causation pursuant to the Board's remand. The January 2013 VA examiner determined that the Veteran's right knee disability, for which he has since been granted service connection, was due to his parachute jumps, while the left knee disability was the result of the work-related accident and not due to service. The examiner also stated that the Veteran reported a fluent, cogent history of his onset of neck, back and knee complaints. The examiner also stated the Veteran presented as honest in relating his service and non-service connected events. Further, the Veteran has not had a job with high impact that should be expected to affect the neck, back, or knees. The Board finds that the Veteran served in combat and credibly reports the onset of left knee problems while in jump school and as a result of subsequent helicopter jumps. Given that he is a combat Veteran, VA must presume the occurrence of the in-service injury without affirmative evidence to the contrary. Helicopter jumps are consistent with the circumstances and hardships of his combat service. In addition, the medical evidence shows that the Veteran has been diagnosed as having strain and post-operative patella shaving of the left knee. Further, the Board finds that he is both competent and credible to report observing having knee problems since his service in Vietnam and, moreover, the January 2013 VA examiner described him as honest. In light of his combat service, the credible history of having the condition since service and the diagnoses of having strain and post-operative patella shaving of the left knee, the Board finds that the Veteran's claim of service connection for a left knee disability should be granted. Based on the evidence, the disability is best characterized as left knee strain with patella shaving. ORDER Service connection for left knee strain with patella shaving is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs