Citation Nr: 1333471 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-22 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for arthritis of the right knee. 2. Entitlement to service connection for arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from March 1963 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the above claims. FINDINGS OF FACT 1. Arthritis of the right knee has been related to active service. 2. Arthritis of the left knee has been related to active service. CONCLUSIONS OF LAW 1. Arthritis of the right knee was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2013). 2. Arthritis of the left knee was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Quarticcio v. Principi, 16Vet. App. 183 (2002). The Board finds that service connection is warranted for right and left knee arthritis. Therefore, no further discussion of VA's duties to notify and assist is warranted for these claims as any deficiency has been rendered moot. II. Analysis Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disability also may be service connected if the evidence of record reveals that the Veteran currently has a disability that was shown to be chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter, provided it is recognized as chronic under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b) (2013). Since arthritis is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application in the instant case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disabilities diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (service connection presupposes a current diagnosis of the disability claimed). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (such as a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2013). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran contends that he injured his left and right knees in service on several occasions and that the arthritis in his knees should therefore be service connected. In this regard, service treatment records do reflect that he fell and suffered a contusion to his left knee in April 1963, and sprained lateral ligaments in the left knee while at work in February 1964. They also confirm injury to the right knee in April 1963 when he slipped on some stairs and struck his right kneecap, and the Veteran's involvement in a plane crash during service in June 1967, at which time he asserts that he sustained a back injury and additional injury to his knees. While there is a notation in the Veteran's November 1970 separation examination of a history of torn cartilage in the left knee in 1960, there was no notation of a left knee problem at the time of the Veteran's entrance examination in March 1963, and such a history does not constitute clear and unmistakable evidence that the Veteran's left knee disorder preexisted service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Consequently, this case is solely a case of direct service connection. Private treatment records for the period of November 1998 to March 1999 reflect that in January 1999, it was noted that since his previous evaluation in August 1998, the Veteran had reportedly continued to experience marked retropetellar crepitation and increasing knee pain. The plan was for the Veteran to undergo Fulkerson type osteotomies, first on the left, which would initially involve arthroscopy. X-rays taken prior to surgery revealed osteoarthritis in each knee. In February 1999, the Veteran underwent arthroscopy, an arthoscopic partial medial meniscectomy, and open Fulkerson type tibial tubercle plasty of the left knee, and the postoperative diagnosis was patellofemoral arthralgia, grade 4, chrondromalaciapatella plus torn lateral meniscus all of the left knee. X-rays obtained after the procedure revealed three screws transfixing the tibial tubercle relating to a patellar re-alignment procedure. VA treatment records for the period of March to July 2006 reflect that in March 2006, the Veteran's complaints included chronic bilateral knee pain which was worse with weight bearing and exercise, and manifested by swelling and occasional locking and catching. In April 2006, it was noted that the Veteran presented with bilateral knee pain that he had had for many years. His left knee was reportedly worse than his right. X-rays were interpreted to reveal a degenerative condition. The Veteran also noted that he had arthroscopic surgery on the left knee several years earlier, but that this did not help. At this time, the Veteran received injections for pain in both knees. In June 2006, the Veteran reported only temporary relief from the injections and the plan was for the Veteran to undergo injections with another medication over the next 5 weeks. VA treatment records for the period of February to June 2007 reflect that in March 2007, the Veteran underwent orthopedic evaluation for his bilateral knee pain, right greater than left. Although he stated that he had been dealing with significant knee pain for the previous 8 to 10 years, he noted that his only risk factor for knee pain was that he did work as an airplane mechanic in the service for approximately 8 years and did the bulk of the work while kneeling on concrete. X-rays were noted to demonstrate severe degenerative changes to the patella femoral joint, and the overall assessment was bilateral patella femoral arthritis. In June 2007, it was noted that the Veteran's knee pain was isolated at the anterior knee. Imaging was again reviewed from his previous visit and noted to show severe arthritic changes underneath both kneecaps with relative preservation of the medial and lateral compartments of the knee. The impression was bilateral knee patellofemoral arthritis. Based on the isolation of the arthritis in the patellofemoral region, at the time of this evaluation, it was felt that the Veteran may not be a very good candidate for surgical intervention. VA treatment records from July 2008 reflect that the Veteran continued to have pain in his knees, the right worse than the left. Knee replacement surgery was being considered but held in abeyance as a result of a recurrent tooth infection. A September 2009 private medical report from chiropractor Candie L. Harris initially notes the Veteran's history of being an aircraft mechanic during service, which detail included working on mainly smaller aircraft with a clearance of 5 feet and under. As a result, given the Veteran's height of 6'7," the Veteran reportedly had to kneel in order to do the mechanical repairs. Due to the locations involved, it was also necessary for the Veteran to kneel on very hot or very cold concrete and steel planking, and the majority of the work was done outside. Dr. Harris further noted that there were no knee pads in use at that time and that as a result of trauma to the osseous structures of the body, bone growth was accelerated, and this increase would lead to degenerative changes. Dr. Harris further noted that the Veteran had learned to deal with the pain and wore braces on his knees during waking hours. A cane was also used for support, in case the knees would give out and resulted in falling. X-rays were noted to reveal bone on bone degeneration of both knees. Physical deformities were also noted. It was this examiner's opinion that the degenerative changes in the Veteran's knees were a direct result of his duties as an aircraft mechanic during his military service. VA examination in May 2010 noted the Veteran's history of sprains in service and also diagnosed arthritis of the knees. The examiner concluded that it was not likely that the Veteran's arthritis was related to service. The examiner further commented that it was more likely than not that this was naturally occurring progressive arthritis in the Veteran's knees. As for the Veteran's pre-service history of left knee injury, in an addendum statement, the examiner stated that there was no evidence on record that this pre-service injury was aggravated beyond normal progression. Following an evaluation of the Veteran in January 2011, VA physician J.V.K. stated that with respect to the Veteran's degenerative joint disease (DJD), in reviewing the Veteran's records, it was his opinion that this condition was more likely than not related to his military service. In January 2011, the Veteran submitted various articles that addressed the fact that occupations that involved repetitious stress on the knees were shown to have a higher incidence of osteoarthritis of the knee. At the Veteran's hearing before the Board in December 2011, the Veteran testified about his initial injuries and stress on his knees during service, and stated that another VA physician, Dr. S., also believed that his arthritis was related to his military service. In a December 2011 statement, the Veteran's spouse, who had been married to the Veteran since his days in the military, recalled that the Veteran had complained of pain in his knees throughout their marriage. In reviewing the evidence of record, the Board first notes that the Veteran clearly has a current diagnosis of arthritis in each of his knees. Moreover, there is evidence of injury to his knees in service. Consequently, the Board finds that the remaining question is whether the evidence supports a link between the Veteran's current diagnosis and service, either by way of continuity of symptomatology or by competent medical opinion evidence. In this regard, the Board would first note that while the Veteran and his wife are competent to state that the Veteran has been complaining of bilateral knee pain in service, with a condition such as arthritis, their statements alone are not sufficient to link such a diagnosis to service by way of continuity of symptomatology. However, these statements in conjunction with competent medical opinion are found to warrant service connection for arthritis in both knees. More specifically, in comparing the opinions of record, and most notably the opinion of the Veteran's chiropractor and that of the May 2010 VA examiner, the Board finds that the chiropractor's opinion is more probative and persuasive. The only rationale given by the May 2010 examiner is that the arthritis is more likely naturally age progressive but he does not provide a basis for this conclusion. On the other hand, the Veteran's chiropractor considers the Veteran's uncontradicted history of the type of repetitive activity the Veteran engaged in during service and concludes that as a result of trauma to the osseous structures of the body, bone growth was accelerated, and this increase would lead to degenerative changes. Moreover, two VA physicians concur that the Veteran's arthritis is related to his activities during service, one of whom is a regularly treating physician of the Veteran who also reportedly reviewed all of the Veteran's medical records. Consequently, based on all of the foregoing, the Board will give the Veteran the benefit of the doubt, and conclude that service connection for arthritis of the right and left knee is warranted. ORDER Entitlement to service connection for arthritis of the right knee is granted. Entitlement to service connection for arthritis of the left knee is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs