Citation Nr: 1617451 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 10-00 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for right knee degenerative joint disease. Entitlement to service connection for left knee degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, September 1974 to July 1980, July 2003 to April 2004, and November 2005 to August 2007, as well as other periods of service in the Army National Guard. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In June 2015, subsequent to the issuance of the December 2014 supplemental statement of the case (SSOC), additional evidence, to include service treatment records and military personnel records, have been associated with the claims file. This evidence was not accompanied by a waiver of agency or original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304(c) (2015). Most of this evidence, such as the military personnel records, is duplicative of those that had been previously considered by the AOJ and hence require no such waiver. Moreover, as the Veteran's claim for service connection for bilateral knee degenerative joint disease is being granted herein, the Veteran has suffered no prejudice in the Board considering this newly received evidence with regards to his claim. In October 2014, the Board remanded the claim on appeal for further development. FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed bilateral knee degenerative joint disease had its onset in service. CONCLUSIONS OF LAW 1. Right degenerative joint disease, was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Left degenerative joint disease, was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS As the Board's decision to grant service connection for bilateral knee disability herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 C.F.R. § 3.303(d); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). As the Board awards service connection on a direct basis herein, there is no need to address service connection on a presumptive basis, to include continuity of symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his bilateral knee disability is a result of his service, to specifically include wearing "full battle gear" during training in Iraq, and that symptoms associated with his bilateral knee disability have continued since service. See October 2008 Statement. Service treatment records reflect the Veteran's complaint of right knee pain and an impression of right knee tendonitis in August 2003. See August 22, 2003 Individual Sick Slip. A February 2004 Report of Medical History also notes the Veteran's report that he has had knee trouble in service and his explanation that he has had flare-ups of right knee pain that worsened with physical activities. Post-service, the first medical record showing complaints of knee pain is a private outpatient treatment report dated in May 2008. The Veteran filed his claim regarding the knees in September 2008 and indicated that he did not initiate this claim earlier because he hoped that his knee symptoms would improve. A November 2009 VA examination report reflects the Veteran's report that his knee pain started during service between 1974 and 1980. The Veteran reported that the knee pain worsened when he served in Iraq, to include constant, daily knee pain "especially when putting on the full battle armor." The Veteran explained that during his service in Iraq, he "had to wear the full battle rattle around the perimeter of the defense all the time" and "full vest with ammo" weighing "70 pounds or more," which led to increased knee pain. The November 2009 VA examiner noted findings from a November 2009 X-ray examination, which revealed a diagnosis of mild patellar degenerative changes in the right knee. The X-ray findings of the left knee did not support any pathological diagnosis as to the left knee, but it also indicated that there were no "significant" degenerative changes. In March 2010, VA received statements submitted by the Veteran's friends, R G.M. and M.A.B. R.G.M. stated that in 1980, during the Veteran's second period of active duty service, the Veteran could not participate in physical training due to his knee pain and that they participated in daily runs while wearing combat boots. M.A.B. stated that in March 2003, he observed the Veteran "holding his right knee" during training that required carrying body armor, combat gear, and weapon, and that the Veteran could not complete the physical exercise at the time. With regard to the December 2010 opinion from C.N.B., the Board finds that there is no evidence that C.N.B. examined the Veteran. In addition, C.N.B. does not appear to have reviewed the record or commented on any of the in-service or post-service evidence. Therefore, the opinion is in adequate, and it is afforded little probative value. A December 2014 Disability Benefits Questionnaire (DBQ) report reflects a diagnosis of degenerative arthritis as to both knees. In support of the diagnosis, the DBQ examiner noted a December 2014 X-ray examination findings that revealed mild patellofemoral compartment degenerative change as to the right knee and slight/mild generalized narrowing of the lateral portions of the patellofemoral compartment as to the left knee. The DBQ examiner opined that the bilateral knee disability was less likely than not incurred in service because the degenerative joint disease of bilateral knees was likely related to aging. However, the examiner did not discuss the specific findings associated with the post-service treatment for the knees or the Veteran's credible report of pain since service. After a careful review of the record, the Board finds that the claims should be granted. The first evidence after separation showing that the Veteran complained of knee pain is a May 2008 private treatment report, which is within one year of the Veteran's discharge. No x-rays were taken at that time. The Veteran was first afforded a VA examination in November 2009, at which time he was provided x-rays and found to have mild patellar degenerative changes in the right knee. With regard to the left knee, the report indicated that there was no "significant degenerative change." While degenerative changes of the left knee were not diagnosed, the Board finds that enough information exists to suggest that there were some degenerative changes of each knee shown or suggested in November 2009. While the November 2009 x-ray reports were dated more than one year after the Veteran's separation from service, the Board finds that the Veteran began complaining of knee pain prior to the expiration of the one-year time period. The delay in affording him a VA examination does not mean that he did not manifest arthritis within that one-year time period. As such, the Board finds that the evidence is at least in equipoise that degenerative joint disease of each knee was manifest to a compensable degree within that one-year time period. On that basis, the claims are granted. 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for right knee degenerative joint disease is granted. Service connection for left knee degenerative joint disease is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs