Citation Nr: 1752101 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-06 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to February 1977; August 1983 to November 1983; and August 1990 to May 1991. He also served in the Air Force Reserves. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. This matter was subsequently remanded by the Board in June 2014 and March 2017for additional development. The Veteran's complete service treatment records are unavailable, as evidenced by a February 2009 memorandum noting a formal finding on the unavailability of service treatment records for the period of active duty service from July 1975 to February 1977. VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Board notes the Veteran recently submitted a notice of disagreement (NOD) in August 2017 for a June 2017 rating decision by the RO, requesting a decision review officer. The Board will allow time for the RO to properly address the Veteran's NOD. FINDING OF FACT The competent evidence of record is in relative equipoise as to the whether the Veteran's right knee disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103(A), 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, peptic ulcers, are presumed to be service-connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. III. Analysis: Right Knee Disability The Veteran has been diagnosed with right knee chondromalacia. In this case, the Veteran has asserted that he suffered a knee injury during his time at the Air Force Academy in 1975. The Veteran's STRs to confirm the knee injury are not available, however subsequent medical records note the Veteran's reported injury. The Veteran is competent to report his knee injury and symptoms. The Veteran also asserts he aggravated his knee during periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). There is conflicting medical evidence in this case. An August 2012 private medical opinion indicated the Veteran's right knee condition was both caused by his 1975 knee injury, and aggravated by his subsequent military service. This examiner indicated that she had reviewed the Veteran's past medical records, thus according the opinion significant probative value. A May 2017 VA orthopedic examination provides a negative nexus opinion. Both examiners provided a rationale for their opinions, and the private doctor cited the Veteran's reported history in reaching his opinion. The evidence in this case is in relative equipoise, and, after resolving all doubt in the Veteran's favor, service connection is warranted for a right knee disability. This claim is thus granted in full. 38 C.F.R. § 5107(b). ORDER Entitlement to service connection for a right knee disability is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs