Citation Nr: 1336722 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-17 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for left knee and left ankle disability (initially claimed as a left knee disorder and left leg ankylosis). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Appellant-Veteran and his wife ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active military service from May 1976 to May 1979. He appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012 the Board remanded the claim so a hearing at the RO before a Veterans Law Judge (VLJ) of the Board, in other words a Travel Board hearing, could be rescheduled. The hearing was held in February 2013 before the undersigned VLJ of the Board. A transcript of the proceeding is of record. FINDING OF FACT The presumption of soundness has not been rebutted, and it is just as likely as not the Veteran's left knee and ankle disability is attributable to his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's left knee and ankle disability was incurred in service. 38 U.S.C.A. §§ 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant with substantiating a claim for VA compensation or other benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of this claim, that is, the full granting of the requested benefit, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations because it is inconsequential. II. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Certain listed, chronic disabilities, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree of least 10-percent disabling within one year of the Veteran's discharge from service. This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service or within the presumptive period following service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, as mentioned, is one such disease. Id. In any event, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where, as here, an issue is raised as to whether the disorder now claimed by the Veteran pre-existed his service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or a disease existed before acceptance and enrollment into service and (2) was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). See also VAOPGCPREC 3-2003 (July 16, 2003). This statutory and regulatory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). For the clear and unmistakable standard to be met, the evidence must be "undebatable" that the disability in question pre-existed service and was not aggravated by service. See, e.g., Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The standard of proof to be applied in direct service connection claims is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Turning now to the relevant facts of this particular case. The evidence shows that the Veteran sustained a laceration into his left knee joint with partial tear of the patellar tendon as a result of a motorcycle accident in December 1973, so about 21/2 years prior to beginning his military service in May 1976. As a result, he underwent surgery during which his left knee area was debrided, the knee joint irrigated, and a defect in the patellar tendon and expansion of the capsule sutured. Subsequently, during his April 1976 military entrance examination, that prior knee surgery was noted, but then current evaluation of this knee showed no significant abnormalities, with good range of motion, full strength, no crepitus or effusion and performance of leg and knee exercises without difficulty. Thus, as he was not found to have any actually discernible left knee defects, infirmities or disorders during that entrance examination, and moreover did not complain of any, it must be presumed that his left knee was sound when he entered service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Along with the documentation of the left knee treatment in the aftermath of that motorcycle accident prior to service, the evidence of record also includes a September 2009 VA examination report and an April 2011 private treating physician's letter, with both clinicians essentially finding that the Veteran did in fact have a pre-existing left knee disability when he entered service. However, given that the April 1976 entrance examination specifically found that there was no significant abnormality of this knee, the evidence does not clearly and unmistakably show (i.e., does not undebatably show) that an actual pre-existing left knee disability was present. Consequently, the presumption of soundness is not rebutted and the Veteran's left knee must be considered sound on entry. Id. Subsequent to entry into the military, the service treatment records (STRs) show the Veteran began experiencing recurring knee problems once in service. He was seen by medical personnel in October 1976 for a general left knee problem, in September 1978 for knee pain, in November 1978 for pain in his left leg after a running injury, and in January 1979 after jamming his left knee between a wall and a wall locker. An X-ray in November 1978 had shown no significant abnormality, but an X-ray later taken in January 1979 revealed an extra piece of bone on the inferior aspect under the surface of the left patella that probably represented a patellar partitita. There was also a very thin slide-like collection of gas in the medial joint compartment, which had the appearance of a vacuum phenomenon seen in normal joints having recently been put under stress. Also, he since has testified that he continued experiencing knee problems from the time of his service up to the present. Additionally, after reviewing the claims file, the September 2009 VA examiner affirmatively found that the Veteran's current left knee degenerative joint disease (i.e., the arthritis affecting this knee) was more likely than not caused by the traumatic injury to this knee in December 1973, prior to the Veteran's service, but that it could not be determined without resorting to speculation whether this pre-existing left knee disability was aggravated by his service. Given however, contrarily, that the left knee must be considered sound on entry, this opinion must be viewed as tending to indicate the Veteran's current left knee disability is the result of an underlying left knee pathology that was not present until after he entered service. Further, the April 2011 private physician, after reviewing the military records, specifically determined that it was more likely than not that the Veteran's left knee disability was aggravated by his military service. Because the left knee must be considered sound on entry, this opinion more generally tends to indicate the current left knee disability is related to the left knee pathology the Veteran experienced once in service. Moreover, his several medical contacts for knee pathology during service, along with his testimony of continuity of left knee symptoms since service (which the Board does not find a basis for finding not credible), lends support for such a finding. Most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale. See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (a review of the claims file does not substitute for a lack of a reasoned analysis; instead, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). This is because the history of the disability can be obtained in other reliable ways, such as by having the Veteran recount the history of his disability (assuming his statements and testimony concerning this are credible) or by having had occasion to evaluate and treat him over time to have familiarity with his situation and circumstances. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that it was based on history given by the Veteran). As the Court reaffirmed in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. But see, too, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Here, for the reasons and bases already discussed, neither the Veteran's competence nor credibility has been called into question, so his lay testimony regarding the status of his left knee prior to, during, and since his service is probative and at least supported by some, albeit not all, of the medical evidence. Consequently, resolving all reasonable doubt in his favor in relation to his reports of continuity of knee pathology since service and the general question of a medical nexus, the Board finds that a current left knee disability, knee injury or pathology during service, and a nexus between the current disability and knee injury or pathology in service all have been established. 38 C.F.R. §§ 3.102, 3.303, 3.304. Accordingly, as all elements of the claim are met, service connection for left knee and ankle disability is warranted. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). ORDER Service connection for left knee and ankle disability (initially claimed as a left knee disorder and left leg ankylosis) is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs