Citation Nr: 1335310 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-15 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to October 1999 and from January 2003 to March 2004, including recognized combat service in Iraq for which he received the Combat Infantryman Badge. This matter comes before the Board on appeal from an April 2007 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at the RO at a November 2010 hearing before the undersigned. A transcript (Tr.) of the hearing is of record. Thereafter, the Veteran submitted written argument in support of his left knee claim, which was received at the Board in August 2013. While unaccompanied by a waiver of RO review, the contents of that submission are largely cumulative of other evidence of record. As such, the Board considers it unnecessary to elicit a waiver, or to otherwise delay adjudication, particularly in light of its decision to grant the benefits sought on appeal. FINDING OF FACT A left knee disability, diagnosed as degenerative arthritis, status/post arthroscopic meniscectomy, had its onset during the Veteran's combat service. CONCLUSION OF LAW The criteria for service connection for a left knee disability, diagnosed as degenerative arthritis, left knee status/post arthroscopic meniscectomy, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154(b), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist the Veteran pursuant to the VCAA. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Nevertheless, the Board finds that a detailed analysis of the VCAA provisions is unnecessary in this case, given the favorable disposition below. Merits of the Claim The Veteran, in written statements and testimony before the Board, alleges that he injured his left knee in service and that as such, direct service connection is warranted. He also has presented medical evidence of a left knee disability -- degenerative arthritis -- that is expressly recognized as a chronic disorder under 38 C.F.R. § 3.309(a). Accordingly, the Board will consider whether to grant his claim for service connection on both a direct and presumptive basis. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record). The Board recognizes that the Veteran has also raised a claim of secondary entitlement by arguing that his left knee was weakened by his service-connected right knee disability (degenerative arthritis of the right knee, status-post arthroscopic meniscectomy). 38 C.F.R. § 3.310. However, the Board finds that particular theory of entitlement need not be addressed in order to grant service connection in this case. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a claimed disorder, there generally must be (1) medical evidence of a current disability; (2) medical, or in certain instances, 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, the record reflects that the Veteran has been diagnosed with a torn left medial meniscus, status-post arthroscopy, and mild degenerative arthritis in his left knee. Accordingly, the first Hickson element has been met. The second Hickson element also has been satisfied in light of the Veteran's combat status. His service personnel records reflect that he served in support of Operation Enduring Freedom, Operation Iraqi Freedom, and Operation Noble Eagle, and was awarded the Combat Infantryman Badge. See Service Separation Form DD-214. Therefore, under applicable law, satisfactory lay evidence of injury sustained in the line of duty shall be accepted as proof of in-service incurrence, provided that the evidence is consistent with the circumstances of service and notwithstanding the lack of any official record of in-service injury. 38 U.S.C.A. § 1154(b). In this case, the Veteran has presented satisfactory lay evidence of a left knee injury, which he incurred after falling from an Army truck while deployed in Iraq. See December 2005 VA Joints Examination at 1; Board Hearing Tr. at 3. Although unable to recall the precise date of that in-service injury, the Veteran has provided an unwavering account of the circumstances under which it occurred, as evidenced by his transcribed statements to VA clinicians and his testimony before the Board. Id. The Veteran also has reported a history of in-service left knee treatment by platoon and unit medics, but has acknowledged that the records of such treatment have not been obtained in support of his appeal. See Board Hearing Tr. at 3-5. A review of the claims file reflects that, while the Veteran's complete service treatment records have been requested, specific attempts to obtain his missing field treatment reports have not been made. Nevertheless, the Board considers it unnecessary to delay adjudication in an effort to obtain those outstanding records. Indeed, such development would only burden VA, rather than benefit the Veteran, and should therefore not be undertaken. See Sondel v. West, 13 Vet. App. 213, 221 (1999). That is because the Veteran's own assertions of in-service incurrence are both uncontroverted and highly plausible in light of his documented combat service. As such, those lay assertions are in and of themselves sufficient to meet the relaxed evidentiary standard set forth in 38 U.S.C.A. § 1154(b). Accordingly, the Board will presume, on the basis of those assertions, that the Veteran injured his left knee during combat service. It follows that his claim now turns on whether that conceded in-service injury is etiologically related to one or more of his current left knee disabilities. This third and final Hickson element is not covered by the combat presumption, but may nonetheless be substantiated through lay evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus requirement). Such evidence has been presented in this case. Specifically, the Veteran has provided written statements and testimony in which he chronicles his history of left knee pain, stiffness, and related symptoms emanating from service. He is competent to report such recurrent symptoms, which are capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that a layperson is capable of opining on medical questions that fall within the realm of common knowledge); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a layperson is competent to report on that of which he or she has personal knowledge). Moreover, the Board considers the Veteran's assertions to be credible as they are consistent with the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Notably in this regard, the Veteran's VA medical records show that, beginning in September 2004, he sought treatment for recurrent left knee pain, instability and swelling, which he attributed to his recent military service. Although contemporaneous X-rays were negative for joint abnormalities, the Veteran continued to seek treatment for his recurrent left knee symptoms. Such treatment included an August 2005 Magnetic Resonance Imaging (MRI) scan, which revealed a torn left medial meniscus and related degenerative changes that necessitated arthroscopic surgery. Following that operation, the Veteran underwent extensive outpatient physical therapy for his left knee symptoms. Thereafter, he presented for a December 2006 VA joints examination, which yielded diagnoses of mild degenerative arthritis in both knees. The examining clinician did not comment on the etiology of the Veteran's knee disorders, but did note his complaints of left knee pain beginning in 1999 and worsening during his deployment in Iraq from 2003-2004. The Board acknowledges that the above VA examiner has not provided a medical nexus opinion in support of the Veteran's left knee claim. Nor has any other VA or private clinician. Nevertheless, the Board finds that the Veteran's uncontroverted assertions of recurrent left knee symptoms are sufficient to establish an etiological link between his current diagnoses and active service. In reaching this conclusion, the Board considers it significant that the Veteran sought treatment for those symptoms within a few months of his Army discharge, and that he expressly informed his VA treating providers that he had injured his left knee in service. Such a lay history, elicited for the purposes of medical treatment, is inherently more probative than assertions rendered solely in pursuit of VA benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). Accordingly, the Board finds that this uncontroverted history, in tandem with the evidence of combat injury and current left knee diagnoses, is sufficient to show that service connection is warranted on a direct basis. See 38 C.F.R. § 3.303(d) (noting that service connection is warranted on a direct basis when all the evidence, including that pertinent to service, establishes that the underlying disease entity was incurred in service). The Board also finds that the above evidence is sufficient to establish service connection on a presumptive basis. In this regard, the Board recognizes that the first clinical findings of left knee degenerative changes are dated in August 2005. That is approximately 16 months after the Veteran's military discharge and, thus, outside the one-year manifestation period in which chronic diseases, such as arthritis, may be presumptively linked to service. 38 C.F.R. §§ 3.307, 3.309. However, an in-service nexus may also be presumed based upon continuity of symptomatology, which may be substantiated through lay evidence. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). In this case, such evidence has been presented through the Veteran's written statements and testimony, which collectively indicate that his left knee arthritis symptoms - including pain, effusion, and stiffness -- predate his official diagnosis and, indeed, have persisted on a continuous basis since his active service. Accordingly, the Board finds that the requirements for service connection have been met in this case under both direct and presumptive theories of entitlement. Therefore, resolving all remaining reasonable doubt in favor of this combat-decorated Veteran, the benefits sought on appeal are granted. ORDER Service connection for a left knee disability, diagnosed as degenerative arthritis, status/post arthroscopic meniscectomy, is granted. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs