Citation Nr: 1753418 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-15 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2015, the Veteran appeared with his representative for a travel Board hearing before another member of the Board who has since retired. A transcript of that proceeding has been associated with the record. By way of background, the Veteran was notified by a letter dated in December 2016 of his right to an additional hearing before a Veterans Law Judge that will make a decision on this appeal. The Veteran indicated he wished to proceed without an additional hearing. These matters were remanded by the Board in September 2015 and again in April 2017 for additional development. Such development was completed and the matters returned to the Board for appellate consideration. An August 2017 rating decision by the RO granted entitlement to service connection for lumbar spine disability. The RO's grant of service connection for this issue constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating and/or the effective date assigned). FINDINGS OF FACT 1. The Veteran's left knee disability is etiologically related to military service. 2. The Veteran's right knee disability is etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2017). 2. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist The Board finds that the competent and probative evidence of record supports the grant of service connection for right and left knee disability. This award represents a full grant of the issues on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. II. Service connection Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). The current disability requirement is satisfied when a veteran "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). 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) (2017). Analysis Based upon a review of the record, the Board finds that service connection for left and right knee disability is warranted in this case because the evidence shows a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. The record in this case is clear as to whether the Veteran has a bilateral knee disability. Indeed, the May 2017 VA examination confirms that the Veteran has a current diagnosis of degenerative joint disease (DJD) of the bilateral knees. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning an in-service event, illness, or injury, the Veteran has consistently reported that he experienced ongoing knee pain in service. In particular, at his September 2015 hearing, the Veteran indicated, in pertinent part, that he experienced knee pain in service due to his airborne status, i.e., multiple jumps, and two decades of physical training, e.g., ruck-sack marches. This lay evidence is corroborated by the Veteran's STRs, which reflect the Veteran sought treatment for knee pain on a few occasions. For instance, records dated in March 2007 reflect the Veteran complained of constant pain when performing high impact exercises. Moreover, records dated in February 2009 reflect the Veteran's complaints of knee pain for the "last few years." The Board finds the lay evidence of record to be competent and credible. Thus, the Board finds the record demonstrates, at a minimum, some in-service occurrence, pertaining to the Veteran's claimed disability for purposes of service connection. With respect to the remaining nexus element, the Board notes that the May 2017 VA examination provided a positive nexus opinion. Specifically, the examiner opined that the Veteran's DJD of the bilateral knees is at least as likely as not caused by or otherwise etiologically related to service. In doing so, the examiner noted the Veteran's two decades of service, including his airborne status. The examiner referenced medical literature demonstrating a causal relationship between military service and increased strain on the knee joints. The examiner reiterated that given the Veteran's length of service and airborne status, his current knee disability is the likely natural progression of his service. Based on this information, the Board finds that the evidence is, at the very least, in equipoise as to whether the Veteran's left and right knee disability was incurred in or a result of his active military service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for left and right knee disability is warranted. ORDER Entitlement to service connection for left knee disability is granted. Entitlement to service connection for right knee disability is granted. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs