Citation Nr: 1752292 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-30 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection bilateral knee disability, including degenerative joint disease (DJD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2014, the Veteran presented sworn testimony during a personal hearing before a Veterans Law Judge who had since retired. The Veteran was offered an opportunity to appear at an additional hearing, but declined. In October 2015, the Board remanded the claim for further development. FINDING OF FACT The Veteran's bilateral knee disability with DJD is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability with DJD are met. 38 U.S.C.A. §§ 1110, 1507 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a) (2014). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is considered a chronic diseases under 38 C.F.R. § 3.309 (a); therefore the claims may be subject to service connection based on continuity of symptomatology. Moreover, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Regarding the issue of a bilateral knee disability, the service treatment records show treatment for bilateral knee pain with complaints of slipping and popping during the Veteran's active duty service. See May 1970 Consultation Sheet, received November 9, 2015, at 27, 41. Indeed, at his hearing, the Veteran stated that, during his service and during his rigorous training, he complained of pain, strange noises, snapping, and popping coming from his knees, which he had never experienced before. See May 2014 Board Hearing, received May 12, 2014, at 5-8. Post-service VA and private treatment records show continuous treatment for knee pain and diagnoses of a bilateral knee disability. The Veteran complained of, and received treatment for, knee pain in 2003. See June 2003 Charlotte Orthopedic Specialists Record, received December 13, 2016, at 10. In a December 2016 statement, a friend of the Veteran noted that the Veteran has had knee problems since he has known him back in 1981. The Veteran's ex-wife noted that before his military career, she did not recall her husband ever having any knee complaints until after he completed basic training. His military colleague noted in a statement that they feared going on sick call during training, and he also stated that he was aware that the Veteran experienced knee problems while in the military. See December 2016 Buddy Statements, received December 8, 2016, at 2-4. The Veteran noted in a September 2013 statement that his older private medical records were unavailable because those doctors were no longer practicing and recounted the history of medical care he received for his knees. See September 2013 Veteran Statement, received September 30, 2013, at 1. The Veteran's treating physician, in a September 2010 letter, stated that after reviewing the Veteran's military records and noting his in-service evaluations for bilateral knee issues, she felt that his bilateral knee disability with DJD is etiologically related to his active duty service. See September 2010 Physician's Letter, received April 18, 2016, at 1. In June 2011, the Veteran was afforded a VA examination for his knee disability. The examiner sporadically addressed the left knee, but did not ultimately address whether the Veteran's left knee disorder was related to his service. With respect to the right knee, the examiner opined that the Veteran's "no injury [was] documented, normal orthopedic evaluation during service and normal exit physical 18 months after lat [sic] complaint regarding knees. No evidence subsequent to service showing chronicity." However, the Board notes that the June 2011 VA examiner did not address the lay observations of the Veteran's knee pain nor his treatment for knee disabilities since his separation from service. An addendum opinion was obtained from a VA examiner in February 2016. The examiner stated that it was less likely than not that the Veteran's current DJD of bilateral knees was related to the military. Rather, the examiner concluded that the Veteran's bilateral DJD of his knees was more likely related to age, explaining that had he had significant damage to his knees while on active duty, one would expect chronic pain with treatment over the years and that there was an absence for any of this. Again, the Board notes that this VA examiner did not address the lay observations and statements concerning the Veteran's knee pain since his separation from service nor the Veteran's assertion that his older private medical records were unavailable because those doctors were no longer practicing. In view of the foregoing conflicting medical opinions, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a bilateral knee disability is warranted. ORDER Entitlement to service connection for a bilateral knee disability with DJD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs