Citation Nr: 1337353 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-39 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1985 to June 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied reopening service connection for a right knee disability because new and material evidence was not received. The claims file has since been transferred to the RO in Wichita, Kansas In a January 2013 decision and remand, the Board reopened service connection for a right knee disability and remanded the appeal to the RO via the Appeals Management Center (AMC) for a VA examination and opinion. The Veteran was scheduled for a January 2013 VA examination but he failed to appear without explanation. The Board finds that the AMC substantially complied with the Board's remand instructions in scheduling the VA examination, and the Board finds that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. A disability related to the right knee was not "noted" at service entrance. 2. The Veteran has currently diagnosed right knee arthritis. 3. The Veteran was treated for injuries to the right knee in service. 4. Arthritis in the right knee did not manifest to a compensable degree within one year of separation from service. 5. The Veteran experienced continuous right knee symptoms after service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right knee arthritis have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The Board is granting service connection for right knee arthritis under the 38 C.F.R. § 3.303(b) presumption for chronic diseases based on continuity of symptomatology; thus, a VA examination and nexus opinion is not necessary for disposition of the claim. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection Analysis The Veteran contends, in a September 2010 substantive appeal, that he injured his right knee on active duty in the 1980s and that this is documented in service treatment records. He contends that his knee has been painful since service. The Veteran reported that April 2009 x-rays show that the cartilage in the right knee is gone. He contends that such degeneration did not occur in just a few years and contends that it is due to the in-service injury in the late 1980s. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that a right knee disability was not "noted" at service entrance. While during private treatment in May 2009, the Veteran described a 22-year history of knee pain that he attributed to football injuries in high school, a right knee disability was not "noted" on a January 1985 service enlistment examination; therefore, the Veteran's right knee is presumed to have been in sound condition at service entrance. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304. There is no other evidence of record to elucidate the nature of any pre-service injury, any residuals, the course of treatment, or any other factors that may enable the Board to gauge any relevant information as to its preexistence, the Board finds that the presumption of soundness at service entrance with respect to the right knee has not been rebutted. The evidence is not clear and unmistakable that a disability related to the right knee preexisted service; therefore, this is a case of direct service connection rather than one of aggravation by service, and an opinion is not needed for consideration of aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Having determined that the Veteran was sound with respect to the right knee at entrance, the Board must determine if a currently claimed right knee disability was incurred in service. The Board finds that the Veteran has a current disability of arthritis of the right knee. The evidence of record shows that the Veteran has a current diagnosis of arthritis in the right knee. May 2009 private treatment reports reflect a current diagnosis of varus gonarthrosis of the right knee with x-ray evidence of bone on bone articulation of the medial compartment with mild to moderate osteoarthrtic changes at the patelofemoral and lateral compartments. The Board finds that the Veteran was treated for injuries to the right knee in service. Service treatment records show that the Veteran sustained an injury to the right anterior cruciate ligament while playing football in October 1986. The Veteran was seen for continuing right knee complaints from 1986 to 1990 with additional injuries of right knee strain in September 1989 and right knee trauma in January 1990. Clinical records and periodic evaluations do not reflect continuing right knee complaints or treatment from 1991 to 2006; however, on a March 2006 report of medical history completed at service separation, the Veteran responded "yes" to the question "have you ever had or now have" swollen or painful joints and knee trouble. The Veteran stated, "I have had knee problems, torn ligament on both knees." Arthritis in the right knee did not manifest to a compensable degree within one year of separation from service. The earliest diagnosis of arthritis of the right knee shown by the evidence of record was the May 2009 treatment report, approximately two years after service separation; therefore, the one year post-service presumption for arthritis is not met in this case. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board further finds that, while arthritis in the right knee did not manifest to a compensable degree within one year of separation from service, the evidence is at least in equipoise on the question of whether the Veteran had continuous of right knee symptoms after service to warrant presumptive service connection under 38 C.F.R. § 3.303(b). It is unclear from the March 2006 service separation examination report of medical history whether the Veteran was identifying present right knee joint symptoms at separation or a history of such symptoms; however, the evidence of record shows that Veteran filed an August 2007 claim for compensation for the right knee, just two months after service separation, indicating that the right knee was symptomatic at that time. Additionally, during private treatment in May 2009, the Veteran identified a 22 year history of right knee pain, dating back to football injuries in the late 1980s, which would coincide with the Veteran's in-service football injuries. Medical histories provided by a patient for treatment purposes are highly probative as they are made for the purpose of receiving proper medical care. The Board finds that the Veteran's report of having symptoms of right knee pain both around the time of separation and shortly thereafter is credible, as it is consistent with the in-service right knee injuries and the reported history during the course of treatment in May 2009, and is consistent with other evidence of record. The other evidence of record includes the May 2009 treatment report that shows x-rays that revealed "complete obliteration of the joint space of the medial compartment of the right knee" and this was stated to represent "advanced arthritis." The Veteran's identification of continuous symptoms post-service is consistent with the May 2009 diagnosis of advanced arthritis shown just two years after service separation. This evidence is in the context of evidence that shows that the Veteran sustained injuries to the right knee in service and reported knee symptoms at service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran experienced continuous symptoms of right knee pain after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303(b), based on "continuous" post-service symptoms of arthritis, have been met. As the Board finds that the weight of the evidence demonstrates that the currently diagnosed right knee arthritis is related to service by a finding of continuity of symptomatology of right knee pain since service (38 C.F.R. § 3.303(b)), the criteria for grant of presumptive service connection for right knee arthritis are met under 38 C.F.R. § 3.303(b); therefore, a medical nexus opinion regarding the theory of direct nexus to service (direct service connection under 38 C.F.R. § 3.303(d)) is not necessary to establish service connection. For these reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that presumptive service connection for right knee arthritis is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right knee arthritis is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs