Citation Nr: 1753027 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-08 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2016, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. In March 2017, the Board remanded this case for further development. The requested development has been completed and associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. It is reasonably shown that the Veteran's current right knee disability is related to his combat service. 2. It is reasonably shown that the Veteran's current left knee disability is related to his combat service. CONCLUSIONS OF LAW 1. The Veteran's right knee disability is a result of injuries sustained during combat. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The Veteran's left knee disability is a result of injuries sustained during combat. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's claim has been considered with respect to VA's duty to notify and assist. The outcome below is favorable. Thus, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Service Connection Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran's DD-214 shows that he received a Combat Action Ribbon while in-service; this evidence establishes that he served in combat. The Veteran contends that he injured his knees while in combat in Vietnam. The Veteran testified at the Travel Board hearing that his unit came under mortar and rocket fire while on patrol and that every time they received fire, the Veteran had to "hit the deck." November 2016 hearing transcript at 4. The Board finds that the Veteran's allegations of injuries are consistent with the conditions and hardships of his service, and concludes that such injuries to the knees occurred while in combat. 38 C.F.R. § 3.304(d). Although there are negative VA nexus opinions, the Board assigns them little weight. In August 2010, a VA examiner found no objective evidence of a left knee condition and that the Veteran's complaints of bilateral knee pain were less likely than not related to the in-service and combat injuries. The Board found this opinion inadequate and ordered another VA examination in the March 2017 remand. The May 2017 examiner opined that the Veteran's bilateral knee disabilities were less likely than not due to service, as his records were silent for any chronic pathology of the knees proximate to military service and initial imaging was in 2012, forty years post-discharge. The examiner did not appear to consider the Veteran's lay statements about the onset of knee pain in service, or the treatment records documenting a history of knee difficulties. This is insufficient rationale for a negative opinion, especially in light of the fact that his injuries occurred during combat. The record reflects that the Veteran's knee pain began in service and that he continued to have symptoms and treatment throughout the years. This further supports his assertions that his knees were injured in service. The Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injuries. In addition, the medical evidence shows that the Veteran has been diagnosed with bilateral knee osteoarthritis. He reports the onset of the conditions during combat service in Vietnam. The Board finds that he is both competent to report this pain during and since serving in combat and that his account of having pain since that time is credible. There are no records that affirmatively contradict the Veteran's statements, nor do any of the records suggest a different etiology for his knee disabilities. Thus, the Board finds that there is insufficient evidence of record to rebut the combat presumption that his bilateral knee disabilities became manifest during his combat service under Reeves. In light of his in-service experiences, the credible history of pain in and since service, and the current diagnoses, the Board finds that service connection is warranted. ORDER Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs