Citation Nr: 1628807 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 09-37 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active duty service in the Army from August 1983 through June 1986 and November 1986 through May 2005. He received numerous awards for his honorable service, including the Distinguished Flying Cross and the Bronze Star Medal. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). That VLJ has since retired, and in July 2014 the Veteran elected to have a new hearing. See 38 C.F.R. § 20.707. In May 2016, the Veteran testified before the undersigned VLJ via videoconference. A transcript of both hearings has been associated with the claims file. This issue has been before the Board on several occasions. In May 2011, the Board remanded this issue in order to provide a VA examination. In December 2014, this issue was again remanded in order to provide the Veteran with his requested new hearing. Both of these requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The claims file includes an additional medical opinion submitted to the Board that has not been initially considered by the AOJ. However, in a June 2016 written statement, the Veteran waived initial AOJ consideration of this newly submitted evidence. See 38 C.F.R. 20.1304(c). Accordingly, appellate consideration may proceed without any prejudice to the Veteran. FINDING OF FACT The Veteran's current right knee disability began during, and continued since, his active duty service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38°U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a right knee disability. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38°U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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 will be discussed, service connection for the Veteran's right knee disability is granted. In his September 2008 written claim, the Veteran stated he injured his right knee during his active duty service, and this injury contributed to his recent right knee operation for a torn meniscus. In subsequent statements, he described that on approximately May 15, 2005, during his active duty service, he was exiting a Chinook helicopter by a greasy ramp while wearing his full flying gear at night, when he stepped off and twisted his right knee. See e.g. August 2010 VLJ hearing pgs 4-5. He stated he immediately experienced pain and swelling in his right knee, but these symptoms resolved with rest. However, ever since this injury, he would experience pain and swelling in his right knee during physical activity. Id. at pg 6. He also described that during service he had more than fifty parachute jumps, which he described as "controlled crashes to the ground." Id. at 16. The Veteran's DD214 reflects he earned the parachutist badge, but his service treatment records do not reflect he sought any treatment for a right knee injury during his active duty service. However, post-service medical records consistently relate the onset of his symptoms to during his active duty service. For example, in a November 2006 VA treatment record the Veteran reported right knee pain since injuring his knee about eighteen months earlier, or in approximately May 2005. In April 2007, he reported his right knee pain began about three years earlier, or around the spring of 2005. Therefore, the Veteran's consistent lay descriptions and post-service medical records reflect he began to experience right knee symptoms during his active duty service. In 2007, a MRI revealed the Veteran had a medial meniscal tear in his right knee. Later that year he underwent surgical repair. After his surgery, he continued to experience pain upon use, and during his August 2010 VLJ hearing he specifically described pain upon pressure to the kneecap, such as kneeling during church. See pg 9. In October 2011, the Veteran was provided with a VA examination. This examiner noted the Veteran's reports of in-service injury to his right knee in May 2005 while jumping off a ramp. As a result, the examiner opined it was at least as likely as not that the Veteran's right knee condition was caused by his in-service injury, providing evidence in support of the Veteran's appeal. In a subsequent October 2012 VA examination, a second examiner opined that after review of the c-file, there was no documentation on a right knee injury in the Veteran's service treatment records. However, as discussed above, the Veteran's consistent lay statements and post-service medical records reflect he injured his right knee during active duty service. Because the 2012 examiner's report is therefore based on an inaccurate factual basis, this report is not probative. Finally, in a June 2016 written statement an Army surgeon stated, "Acute meniscal tears occur most often from twisting injuries." Therefore, he opined "there is a high likelihood" the Veteran's right knee disability is a result of the in-service May 2005 twisting injury the Veteran consistently reported, providing additional evidence in support of the Veteran's appeal. Based on the foregoing, the Veteran's consistent lay statements, post-service medical records, the report of the October 2011 VA examiner, and the June 2016 surgeon's opinion reflect the Veteran's current right knee disability began during, and continued since, his active duty service. Accordingly, the elements of service connection have been met, and the Veteran's appeal is granted. Because this constitutes a full grant of all issues sought on appeal, a detailed discussion of VA's various duties to notify and assist is unnecessary as any potential failure of VA in fulfilling these duties is harmless error. ORDER Entitlement to service connection for a right knee disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs