Citation Nr: 1516589	
Decision Date: 04/17/15    Archive Date: 04/24/15

DOCKET NO.  11-09 390	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease (DJD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel






INTRODUCTION

The Veteran served on active duty from April 1974 to April 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In the April 2011 substantive appeal (VA Form 9), the Veteran requested to appear for a personal hearing at the Atlanta RO before a Veterans Law Judge.  However, in August 2014, the Veteran withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e).

The Board recognizes that the RO has characterized the issue on appeal as a claim to reopen a previously denied service connection claim on the basis of whether new and material evidence has been received.  See the rating decisions dated August 2008 & April 2010; see also the statement of the case (SOC) dated March 2011.  However, upon review of the entire record, the Board finds that the service connection claim is properly characterized as an original claim for service connection.

Following the April 2006 rating decision, the Veteran submitted new lay and medical evidence, which was material to his bilateral knee claim.  See the Veteran's statements dated April 2006, September 2006, & January 2007; see also the statement of the Veteran's spouse dated January 2007 & the private treatment records dated October 2008.  In rating decisions dated August 2008 and April 2010, the RO confirmed and continued the previous denials of service connection for a bilateral knee disability.  However, the Veteran repeatedly submitted evidence in support of his claim and requested reconsideration of the original denial.

The Board finds that the decision on appeal is the April 2006 decision that denied service connection for a bilateral knee disability.  See 38 C.F.R. § 3.156(b) (describing the effect of new and material evidence received prior to the expiration of the appeal period).  In addition, the Board accepts the April 2006 lay statement as a timely notice of disagreement with this rating decision.  38 U.S.C.A. § 7105; 38 C.F.R. § 30.302.


FINDING OF FACT

The Veteran's bilateral knee disability, to include DJD, is as likely as not related to his military service.


CONCLUSION OF LAW

A bilateral knee disability, to include DJD, is likely the result of disease or injury incurred during active military service.  38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Here, the Veteran asserts that he injured his knees while performing parachute jumps during his active military service.  See, e.g., the Veteran's statements dated September 2006.  The Board has reviewed the record and concludes the evidence supports a finding that the Veteran's currently diagnosed bilateral knee disability is attributable to his active military service.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1131.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, 492 F.3d at 1377.

As noted above, the Veteran asserts that he injured his knees while performing parachute jumps during his military service.  See, e.g., the Veteran's statements dated September 2006; see also the VA examination reports dated November 2009 and October 2011.  To this end, the Veteran's DD-214 and service personnel records confirm that his military occupational specialty (MOS) was parachutist.  In addition, the Veteran has submitted the jump log from his military service, which documents 22 jumps; however, he has asserted that he actually performed in excess of 50 jumps.  See the VA treatment record dated June 2010.

The Veteran's service treatment records (STRs) are pertinently absent for any documentation of a knee injury or related complaints.

Private treatment records dated in June 2005 indicated that the Veteran injured his right knee in a work injury; he had surgery to repair a torn medial meniscus.  See the private treatment records dated June 2005, September 2005, and October 2005.  VA treatment records dated in February 2007 documented the Veteran's complaints of chronic knee pain.  In an October 2008 private treatment record, it was noted that the Veteran had experienced bilateral knee pain "for a number of years."  The treatment provider further stated, "[h]e was a paratrooper in the military, which puts a lot of strain on his knee and he also had some issues since then."  See the private treatment record dated October 2008.  The Veteran was diagnosed with mild DJD, in addition to a right lateral meniscal tear, at that time.  Id.

The Veteran was afforded a VA examination in November 2009 at which time the examiner noted the Veteran's report of experiencing knee pain after ten mile runs and parachute jumps.  The examiner confirmed a diagnosis of degenerative arthritis in the bilateral knees.  The examiner reviewed the claims file and noted pertinent service and post-service treatment records.  He then concluded, "[t]here is good evidence that there was . . . knee injury in the military."  The examiner explained, "[p]arachutists do have problems with long term knee injuries.  There is good reason to believe that injury occurred in the military."  However, the examiner concluded, "I cannot answer the relationship to military service without resorting to mere speculation, because there are no available pertinent in-service medical evidence records."

The Veteran was afforded another VA examination dated in October 2011 at which time the examiner documented the Veteran's report that his knee injuries occurred "during jump master school making a routine jump, and had a parachute malfunction due to high wind conditions.  He did not have enough time to deploy the reserve parachute and hit the ground at twice the speed of a normal parachute landing."  The examiner stated that the Veteran broke his left shoulder, and injured his right knee and ankle in this accident, but did not report these injuries.  With respect to the question of medical nexus, the examiner opined, "as there are no medical records attached which refer to a knee injury related to a parachute jump on October 5, 1976, it is impossible to confirm the service-connected knee injury."  The examiner continued, "[i]f this injury did indeed occur and for some reason or another the medical records were not appropriately scanned, then it would be reasonable to conclude that it is at least as likely as not that the knee DJD is related to and a complication/progression of the condition."  Notably, the examiner concluded, "it is at least as likely as not that the current[ly] diagnosed knee condition is related to the right ankle injury, which was evaluated December 10, 1976..."  To this end, the Board observes that the Veteran is currently service connected for a right ankle disability based upon this in-service injury.  See the rating decision dated July 2012.

In support of his claim, the Veteran submitted two letters from Dr. W.C. dated June 2011 and October 2013.  In both letters, Dr. W.C. reported, "I have performed a complete history and physical, and review of his old medical records from his orthopedic surgeon, which document . . . DJD of the bilateral knees."  Dr. W.C. continued, "[i]n my medical opinion, [the Veteran's] knee joint disease is more likely than not related to his jumps while on active duty occurring around the time of his May West (Jump #10)."

In support of his claim, the Veteran also submitted numerous lay statements including an October 2011 statement from Mr. D.T., who reported that he served with the Veteran and witnessed the May 1976 parachute jump during which the Veteran's parachute did not open properly and he hit the ground at a high rate of speed.  In a statement dated October 2011, Mr. D.L. reported that he has known the Veteran since 1978 and has been aware of his knee problems over the years.  In another October 2011 statement, Mr. J.M. stated that he knew the Veteran before and after his military service.  He indicated that the Veteran had no knee problems prior to service, but did endorse problems with his knees following his military discharge.  Similarly, in statements dated January 2012, the Veteran's mother and his sister reported that the Veteran complained of knee pain following his military discharge, which has continued to this day.  In a January 2007 statement, the Veteran's spouse reported that she had known the Veteran for twenty-five years, and he had exhibited knee problems throughout their relationship.

Additionally, the Veteran has submitted numerous statements, in which he argues that he injured his knees while performing repeated parachute jumps.  See the Veteran's statements dated September 2006 and January 2007; see also the VA Form 9 dated April 2011.  He repeatedly contends that his knee pain began during his military service and continues to the present day.  Id.  The Board finds these contentions are both competent and credible, especially with respect to the Veteran's continued knee symptomatology dating from his military service.  See Jandreau, 492 F.3d at 1376-77 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection).  Significantly, the Veteran's assertions of continuing bilateral knee symptomatology, which began during service, are corroborated by the lay statements of his spouse, his mother, his sister, Mr. J.M., Mr. D.T., and Mr. D.L., as summarized above.

Accordingly, the Board has weighed the probative evidence of record, including the Veteran's competent and credible assertions concerning continuing symptomatology.  The Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran's bilateral knee disabilities are a result of his military service.  The benefit-of-the-doubt rule is therefore for application as to this issue.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014).  The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection for a bilateral knee disability.  See 38 U.S.C.A. § 5107 (West 2014).


ORDER

Entitlement to service connection for a bilateral knee disability is granted.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs