Citation Nr: 1639076 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 12-20 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision for the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether a currently diagnosed left knee disability was incurred during active service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, a left knee disability was incurred during active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2015). To establish a service connection for a disability, a Veteran must show: (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 or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records show that in October 1970, the Veteran was treated for a twisted left ankle. An X-ray showed no fracture. The March 1971 separation examination report shows that the Veteran had normal lower extremities. A November 2009 X-ray of the left knee was found by a doctor to be unremarkable. A July 2012 letter from M.J.G., M.D., describes the Veteran's in-service accident when he jumped out of a helicopter and injured his left leg. The Veteran reported experiencing continual knee pain since that injury. Based on the Veteran's reported symptoms and physical examination, the physician opined that the Veteran's knee pain came from a mild case of underlying osteoarthritis. Dr. G. opined that the Veteran's left knee disability was at least 51 percent or better probably service related. Dr. G. noted that the Veteran did not have any pain in the right knee, whereas he did experience the left leg in-service injury. On VA examination in February 2012, the examiner diagnosed degenerative joint disease of the left knee. The Veteran described an in-service injury where he jumped out of a helicopter and landed hard. The Veteran stated that he experienced left knee pain since that time. The examiner remarked that an X-ray of the left knee showed degenerative arthritis with moderate narrowing of the medial compartment. The examiner opined that it was less likely as not that the Veteran's claimed left knee condition was the result of active duty. For a rationale, the examiner stated that there was no complaint of a left knee disability in the service treatment records. The examiner felt that the degenerative joint changes of the Veteran's left knee were more likely secondary to the aging process. In an August 2012 addendum, the VA examiner stated that he could not opine as to whether the Veteran's current left ankle degenerative joint disease was the same as or a result of the in-service left ankle injury without resorting to mere speculation. The examiner noted that radiographs taken in October 1970 documented a normal left ankle, and it was less likely than not that a minor hairline fracture would not appear on an X-ray taken two months after the incident. The examiner further noted that there were no medical records available for review for an over 40 year gap between the claimed injury and the present to document any chronic complaints related to the left ankle. The examiner found that to state that the Veteran had a fracture to his ankle 42 years ago because he had pain in his ankle, when there could be a multitude of likely diagnoses, would be mere speculation and would be akin to malpractice. At a January 2016 Board hearing, the Veteran described an in-service event where he jumped out of a helicopter while wearing a full pack and rifle. He recalled landing awkardly and rolling down a hill. He thought he had broken his ankle. He said he was examined, and at the time a doctor told him he could have experienced a hairline fracture in his ankle. He had multiple helicopter jumps while he was on active duty. As an initial matter, the Board recognizes that although the Veteran has described injuring his ankle while on active duty, none of the statements he has made have implied an intent to file a claim for benefits for a left ankle disability. 38 C.F.R. §§ 3.151, 3.155 (2015). The present claim is one for entitlement to service connection for a left knee disability, as that was the disability claimed on the May 2009, VA Form 21-526, Veteran's Application for Compensation and Pension. The Veteran is advised to contact the RO if he wants to initiate a claim for service connection for a left ankle disability. Here, the Veteran claims that he has a left knee disability as a result of an in-service accident where he jumped out of a helicopter and rolled down a hill. The Board notes 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. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of 38 U.S.C.A. § 1154(b) must be resolved on a case-by-case basis. VAOPGCPREC 12-99 (1999); 65 Fed. Reg. 6527 (2000). Service records show that the Veteran was awarded the Combat Action Ribbon and the Vietnam Campaign Medal with device. His military occupational specialty was antitank assaultman. The Board finds that the evidence shows that the Veteran engaged in combat with the enemy during his service. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are for application, and the Board has accepted the Veteran's description of experiencing a left knee injury as a result of jumping out of a helicopter while on active duty. Although the February 2012 VA examiner opined that it was less likely as not that the Veteran's claimed left knee disability was the result of active duty, the private physician Dr. G. provided a competent and credible medical nexus between the current left knee disability and the service injury. Significantly, no evidence of record affirmatively contradicts the Veteran's account, and the Veteran has been consistent regarding his recollections and symptoms. Notably, the VA examiner primarily supported the opinion by saying that there was no complaint of a left knee disability in the service medical records. However, the Board may not rely on a medical opinion that rejects a Veteran's lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to describe the circumstances surrounding his in-service knee injury and to report the knee symptoms that he experiences because that information comes to him through his senses and requires only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Contrastingly, Dr. G. examined the Veteran and included an analysis of the Veteran's service history and post-service symptoms. Additionally, Dr. G. provided a thorough analysis supporting the opinion provided. Therefore, the Board finds that the negative VA opinion and opinion from Dr. G. are at the very least in equipoise and the evidence for and against the claim is therefore in equipoise. As the Veteran is competent to describe his in-service left knee injury, as his assertions of a continuity of symptomatology are supported by a health care professional, as his assertions are credible, and as he has a current diagnosis of a left knee disability, the Board will resolve reasonable doubt in favor of the Veteran and finds that a current left knee disability is related to a service injury. Therefore, service connection for a left knee disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for a left knee disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs