Citation Nr: 1333984 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-11 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: James M. Brzezinski, Attorney ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active military service from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT The evidence is in equipoise regarding as whether the Veteran's right knee disability is causally related to his active service. CONCLUSION OF LAW Right knee disability was incurred as a result of active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 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. Service Connection In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The evidence of record clearly shows that the Veteran has a current disability of the right knee. An August 2010 MRI showed meniscal degeneration and early chondromalacia. A June 2010 VA examination lists a diagnosis for degenerative joint disease of the right knee. However, a June 2012 X-ray study only identified diffuse osteopenia. There was no finding of degenerative joint disease. Turning to the second Holton element requiring an inservice occurrence or aggravation of an injury, there are numerous service treatment records that document injuries to the Veteran's right knee. A July 1982 record shows that the Veteran hit his right knee "directly on a blunt object" and as a result showed moderate effusion and tenderness over the peri patellar region. Later that month, the Veteran has an emergency care and treatment slip showing a muscle strain from playing soccer. He was diagnosed with a sprained posterior medial complex in the right knee. An August 1982 treatment note shows treatment for a medial collateral ligament sprain. A February 1983 record notes a possible bruise to the inner aspect inferior to the patella after the Veteran fell while on top of a tank. As to element (3) of the Holton analysis, the Board notes that there is positive and negative evidence with respect to the etiology of the Veteran's right knee disability. The probative values of the above opinions are at least in equipoise. Both groups of examiners had the opportunity to review the claims file and service treatment records, physically examine the Veteran, conduct an interview of the Veteran, and provide rationale for their opinions. The knowledge and skill of the examiners are equally comparable. Two private physicians rendered opinions linking the Veteran's current disability to both the soccer injury and trauma from a slip and fall in service and (collectively) submit a strong rationale to support the finding as to etiology noting the absence of knee pathologies before service. The private opinions also specifically reference how the current condition of the Veteran's knee is related to the injuries the Veteran received to his patella from in service injuries. Conversely, the August 2009 VA examiner cited the long time between the Veteran's surface and the resurfacing of knee symptomatology and emphasized other factors such as the Veteran's manual labor post service that could be the cause of the Veteran's knee disability. The October 2010 VA examiner, on the other hand, set forth an opinion stating that the injuries evident in the Veteran's knee were commonplace for a lifelong soccer player and service likely did not cause the Veteran's current disability. None of the opinions are any more persuasive than the other. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the Veteran. 38 U.S.C.A. § 5107(b) (2012). Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran and grant service connection for a right knee disability. ORDER Entitlement to service connection for a right knee disability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs