Citation Nr: 1414437 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 09-11 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a left hip disability, to include as secondary to the service-connected lumbar spine spondylosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1976 to March 1977. The Veteran also spent time in the Army National Guard, which included periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The April 2007 rating decision, in pertinent part, denied service connection for a left knee disability. The April 2011 rating decision denied service connection for a left hip disability. In December 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in San Antonio, Texas. A copy of the transcript has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has a current diagnosis of moderate left knee joint effusion with tricompartmental osteoarthrosis and chondromalacia primarily involving the medial compartment, a medial meniscus tear, and left knee degenerative joint disease. 2. Symptoms of a left knee disability have been continuous since the June 1979 period of ACDUTRA. 3. The Veteran has a current diagnosis of left hip minimal degenerative change with little significant joint space narrowing. 4. Symptoms of a left hip disability have been continuous since the June 1979 period of ACDUTRA. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left knee arthritis and medial meniscus tear have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left hip arthritis have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for left knee and left hip disabilities. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection for Left Knee and Left Hip Disabilities Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with moderate left knee joint effusion with tricompartmental osteoarthrosis and chondromalacia primarily involving the medial compartment, a medial meniscus tear, left knee degenerative joint disease, and left hip minimal degenerative change with little significant joint space narrowing. "Degenerative joint disease, or osteoarthritis, is defined as 'arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of opposing joint surfaces with consequent distortion of joint position usually without bony stiffening.'" Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential single judge decision citing Webster's Desk Dictionary 501 (1986)). Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply to the claims for service connection for left knee and left hip disabilities. For chronic disease such as arthritis, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including degenerative joint disease (arthritis) and cervical myelopathy (organic disease of the nervous system), based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 presumptive 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. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) (West 2002), (24); 38 C.F.R. § 3.6(a), (d) (2013); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. 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). The Veteran contends that he currently suffers from a left knee disability that was caused by injuries sustained during a motor vehicle accident during a June 1979 period of ACDUTRA or is secondary to the left hip disability. In a July 2007 notice of disagreement, the Veteran contended that he experienced left knee trauma after being thrown out of a vehicle in June 1979 and indicated that his left knee disorder had progressively worsened. In an April 2008 written statement, the Veteran contended that he told the military doctor about his knee problems, before he was released from the hospital following the June 1979 motor vehicle accident, and was told that the knee was bruised and would be okay. The Veteran reported that he was in pain every day. At a November 2008 VA examination, the Veteran asserted that his left knee disorder is due to an in-service motor vehicle injury. The Veteran further contends that he currently suffers from a left hip disability that was caused by injuries sustained during a motor vehicle accident during a June 1979 period of ACDUTRA or by service-connected lumbar spine spondylosis. In a September 2010 claim, the Veteran indicated that his left hip disability was secondary to the service-connected lumbar spine spondylosis. At a March 2011 VA examination, the Veteran reported that he has had a left hip disorder the 1979 motor vehicle accident that also caused the service-connected back disability. At a December 2013 Board hearing, the Veteran testified that, following a June 1979 motor vehicle accident, during which he was thrown from the vehicle and lost consciousness, he got out of bed to be discharged from the military hospital and fell due to substantial amount of pain in his left knee and leg. The Veteran testified that he asked the military nurse to talk to a doctor about the left leg pain, but was told that his leg was probably just bruised and to put ice on it. The Veteran testified that he asked the nurse more than once to speak to the doctor about his left knee and hip pain. The Veteran testified that he was in a lot of pain from his back, neck, and hand and that he did not get out of bed while in the hospital. The Veteran testified that the left knee and left hip pain never went away, continuing since the June 1979 period of ACDUTRA and stated that the pain was constant and had worsened over the years. The Veteran does not contend, and the record does not otherwise reflect, that left knee or hip disability was caused or aggravated during the initial period of active service (November 1976 to March 1977) or during other ACDUTRA periods; therefore, the Board will focus on the June 1979 period of ACDUTRA for which a service connection theory has been asserted. There are positive and negative nexus opinions with regard to the theory of direct service connection for both the left knee and left hip disabilities. See November 2008 and March 2011 VA examination reports; December 2013 private opinion from Dr. C.T. As the Board is granting service connection for left hip and knee disabilities based on presumptive service connection based on continuity of symptomatology (adjudicated below) under 38 C.F.R. § 3.303(b), the additional service connection theories of direct service connection (38 C.F.R. § 3.303(d)), presumptive service connection for a "chronic" disease in service (also 38 C.F.R. § 3.303(b)), and secondary service connection (38 C.F.R. § 3.310) pursuant to the same benefit are rendered moot and there remain no questions of law or fact as to the fully granted service connection issue; therefore, the direct service connection, presumptive service connection for a "chronic" disease in service, and secondary service connection theories will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). The competent lay and medical evidence of record demonstrates that the Veteran has currently diagnosed left knee and left hip disabilities. A July 2007 VA treatment record notes, based on an MRI, moderate left knee joint effusion with tricompartmental osteoarthrosis and chondromalacia, primarily involving the medial compartment, and a medial meniscus tear. An October 2007 VA treatment record notes a diagnosis, based on X-rays, of left knee osteoarthritis. A November 2008 VA examination report notes a diagnosis of left knee degenerative joint disease. A March 2011 VA examination report notes that X-rays of the left hip reflect minimal degenerative change with little significant joint space narrowing. Next, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran sustained an in-service left knee or left hip injury during the June 1979 period of ACDUTRA. VA was able to verify that the Veteran was on annual training in June 1979. See Army National Guard Retirement Credits Record. Service treatment records reflect that the Veteran was in a motor vehicle accident in June 1979 where he was thrown out of the vehicle injuring his back and left wrist, shoulder, and thumb, as well as temporarily losing consciousness. With regard to the silence in the Veteran's service treatment records for any treatment, complaints, or diagnoses of a left knee or hip disability, in cases involving combat, VA is prohibited from drawing an inference from silence in the service treatment records. VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat. Id. Here, there is no indication that the Veteran's let knee or hip disabilities occurred while in combat, nor has the Veteran contend otherwise. In cases where this inference is not permitted, i.e., non-combat scenarios, the Board may use silence in the service treatment records as contradictory evidence, if the service treatment records are complete in relevant part and the Board makes a finding that the injury, disease, or related symptoms ordinarily would have been recorded had they occurred. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that "the Board erred by treating the absence of evidence as negative evidence that a veteran's skin condition was not exceptionally repugnant, because this is not a situation where silence in the records tends to disprove the fact"); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded) (cited in Buczynski). In this case, while the service treatment records appear to be complete in relevant part, the Board finds that the Veteran's left knee and hip disorders would not necessarily have been recorded had they occurred, as the symptoms of left knee and hip pain could easily have been masked by the pain caused by the Veteran's back, neck, and wrist injuries. See Buczynski, 24 Vet. App. at 224. Further, if the military doctors thought the pain the Veteran was reporting was caused by a bruise or contusion of the left knee and hip, such a notation would not necessarily have been recorded. The Board finds that the Veteran has credibly reported left knee and hip injuries in service and that he reported left knee and hip pain during treatment in service. Left knee and hip pain is subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan, 451 F.3d at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As such the Board finds that the Veteran's statements regarding in-service left knee and hip injuries are credible because the statements are internally consistent and consistent with the other evidence of record. The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of the Veteran's left knee and left hip disabilities have been continuous since the June 1979 period of ACDUTRA. As noted above, the Veteran has repeatedly contended that he has experienced continuous symptoms of left knee and hip disorders, including constant pain. In a July 2007 notice of disagreement, the Veteran reported that his left knee disability had progressively worsened. At the December 2013 Board hearing, the Veteran testified that symptoms of left knee and hip pain had been continuous since the June 1979 period of ACDUTRA and had worsened over the years. Further, an October 2007 VA treatment record notes that the Veteran reported left knee pain that had progressively worsened since the motor vehicle accident during ACDUTRA. A September 2010 VA treatment record notes that the Veteran reported hip and lumbar discomfort. The Board finds that the Veteran has made credible statements, testimony, and lay histories provided to medical personnel that his left knee and hip disorder symptoms have been continuous since the June 1979 period of ACDUTRA. Additionally, post service treatment records demonstrate that the Veteran's left knee and hip disorders continued to worsen after service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of left knee and hip disorders, presumptive service connection for the current left knee medial meniscus tear and arthritis and left hip arthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left knee medial meniscus tear and arthritis is granted. Service connection for a left hip arthritis is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs