Citation Nr: 1339080	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  09-39 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for right knee chondromalacia patella.

2.  What evaluation is warranted for bilateral calcaneal spurs with plantar fasciitis from June 15, 2007?


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Hager, Counsel
INTRODUCTION

The Veteran served on active duty from September 1984 to December 1984 and from October 2004 to January 2006.

This case comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  In that decision, the RO denied service connection for right knee injury residuals and plantar fasciitis.  In May 2012, the RO granted service connection for bilateral calcaneal spurs with plantar fasciitis.  As discussed below, although the Veteran filed a timely notice of disagreement with the rating assigned for this disability, a statement of the case is not of record.

In August 2012, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

The question what evaluation is warranted for bilateral calcaneal spurs with plantar fasciitis from June 15, 2007 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The evidence is at least evenly balanced as to whether right knee chondromalacia patella is related to service.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, right knee chondromalacia patella was incurred in service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  As the Board is, however, granting the only claim herein further discussion of the VCAA is unnecessary.  Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In this case, the service personnel records reflect that in October 2004, the Veteran was ordered to active duty in support of Operation Iraqi Freedom.  During the Board hearing, the Veteran testified that he injured his right knee while jumping into a trench to avoid incoming fire.  The Veteran is competent to so testify. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (layperson competent to testify as to observations).  The Veteran has also made statements indicating he had experienced right knee pain since service to VA health care providers as recorded in the VA treatment notes.  See Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons").  Given the location where the Veteran was serving, his military occupation specialty of infantryman, and statements from fellow soldiers that they witnessed the Veteran experiencing right knee pain, the Board finds his testimony credible and consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  The Veteran has thus established the in-service injury element of his claim.

The Veteran has been diagnosed with right knee chondromalacia patella, including a November 2006 diagnosis in a VA treatment note supported by X-ray findings.  He has thus met the current disability requirement as well.

The only remaining question is whether the Veteran's current right knee chondromalacia patella is related to his in-service right knee injury.  There is no medical opinion addressing this question.  The Court has noted that chondromalacia patella is defined as "the premature degeneration of the patellar cartilage, the patellar margins are tender so that pain is produced when the patella is pressed against the femur." Odiorne v. Principi, 3 Vet. App. 456, 458 (1992) (citing Dorland's Illustrated Medical Dictionary 326 (27th ed. 1988)).  In light of the November 2006 diagnosis less than a year after service and the competent and credible statements of the Veteran and the other lay witnesses indicating that he experienced pain, a symptom of chondromalacia patella, at and since the time of injury, the Board finds that the evidence is at least evenly balanced as to whether there is a nexus between right knee chondromalacia patella and the in-service right knee injury.  Therefore, with reasonable doubt resolved in favor of the Veteran, 38 U.S.C.A. § 5107(b), entitlement to service connection for chondromalacia patella is warranted, notwithstanding the absence of a specific medical opinion on this question.  Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006) (the statutes and regulations relating to service connection make clear that competent lay evidence can be sufficient in and of itself to establish service connection even in the absence of medical nexus evidence).


ORDER

Entitlement to service connection for right knee chondromalacia patella is granted.


REMAND

As noted, in May 2012, the RO granted service connection for bilateral calcaneal spurs with plantar fasciitis.  The RO assigned a noncompensable rating and the Veteran filed a timely, August 2012 notice of disagreement with the rating assigned.  Review of the physical and virtual VA claims file reflects that a statement of the case has not yet been issued.  Thus, a remand is necessary to correct this procedural deficiency before this issue can be adjudicated by the Board.  See 38 C.F.R. § 19.9(c) (2013), codifying Manlincon v. West, 12 Vet. App. 238 (1999).  On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter.
 
Accordingly, the issue of what evaluation is warranted for bilateral calcaneal spurs with plantar fasciitis from June 15, 2007 is REMANDED for the following action:

Issue a statement of the case addressing the question what evaluation is warranted for bilateral calcaneal spurs with plantar fasciitis from June 15, 2007.  The Veteran is hereby notified that, following the receipt of the statement of the case concerning this issue, a timely substantive appeal must be filed if appellate review by the Board is desired.  If, and only if, a timely substantive appeal is filed, should this issue be returned to the Board for appellate review.


The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs