Citation Nr: 1754767 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-19 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a right knee disability, to include right knee instability and degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2017, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran's right knee disability, to include right knee instability and degenerative joint disease, is related to service. CONCLUSION OF LAW A right knee disability, to include right knee instability and degenerative joint disease, was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish service connection for a right knee disability, to include right knee instability and degenerative joint disease, essentially arguing that he has experienced right knee instability and pain since an in-service accident. The record reflects that the Veteran has been provided all required notice in this matter, to include notice with respect to the effective-date and disability-rating elements of this claim. 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). The evidence currently of record is also sufficient to substantiate the Veteran's claim. No further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). 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) (2016). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran received a VA examination for his right knee in February 2011, and reported that he jumped out of a truck during service and injured his right knee. Shortly afterwards, it swelled and the Veteran sought treatment once; he denied seeking treatment again for his right knee while in service. Although the Veteran reported that he had pain in his right knee after service, he was never specifically seen for his knee condition. Based on the physical examination, the examiner diagnosed the Veteran with degenerative joint disease in the right knee, and found that it resulted in decreased mobility and pain. The examiner opined, however, that the condition was less likely as not caused by or a result of service. The examiner noted in-service treatment, but indicated that the disability appeared to be self-limiting in nature. There was also no follow-up after service. The examiner further noted that the Veteran worked as a delivery man for 30 years after service, and there were no records to support that it was difficult for the Veteran to climb in and out of his truck several times a day. The Veteran received an orthopedic surgery consultation in October 2011, and the physician noted that the Veteran presented for evaluation of right knee pain. He indicated that the Veteran had a knee injury while in service, and had intermittent problems with the knee ever since that time. The physician reviewed the Veteran's active duty records and noted that, in April 1968, the Veteran presented for evaluation of a knee injury sustained while jumping off the back of a truck. He had instant swelling and pain, and it was treated conservatively. In August 1968, the Veteran had an abnormal x-ray with effusion in the knee and a ballottable patella. Later that month, he was noted to have intermittent pain in the right knee with swelling. The physician noted that the Veteran never had any physical therapy or surgical treatment for the knee. The physician indicated that the 1968 incident resulted in an anterior cruciate ligament rupture. He noted that, over the years, the Veteran developed medial and lateral meniscus tears. The intermittent swelling and episodes of instability throughout the Veteran's life were found to be consistent with the initial injury. As a result, the physician recommended arthroscopic surgery for the Veteran's knee for the meniscal pathology. The Veteran received a Board hearing in July 2017 and indicated that he first injured his right knee while in service in 1968 when he jumped off the back of a truck. He felt tremendous pain when he landed, and was immediately taken to the infirmary. His knee was so swollen that he could barely put his fatigues on, and he was placed on light duty and given crutches. After service, the Veteran stated that he would have problems with his knee, but forgot about the accident in service until he was reminded when he received his medical records. He was given steroid shots, and when they no longer work, he had orthoscopic surgery. The Veteran was informed he would need his knee replaced, but the surgeon wanted to replace both at the same time. The Veteran's wife also testified, and indicated that the Veteran had problems with his knee from the day he came back from service. When his knee swelled, they would put ice on it, and then the Veteran would return to work. She stated that the Veteran never saw a doctor for his knee after service because the available times did not coincide with his work schedule, and he was unable to miss time from work because he would not get paid. Therefore, she said, they just treated his knee throughout the years with ice packs and ibuprofen. The Board finds that service connection for the Veteran's right knee disability is warranted. The Veteran testified credibly at his July 2017 Board hearing that he sustained an injury to his right knee during service, and that the knee bothered him after discharge. Furthermore, his wife testified that the Veteran exhibited symptoms of a knee disability as soon as he returned home, and it was treated with home remedies due to the Veteran's inability to find time to see a doctor. The Board finds that both of their testimonies are highly credible and probative of the Veteran's claim that his disability is related to service. Furthermore, the Board finds both the February 2011 VA examination and October 2011 surgery consultation probative of the Veteran's claims. The competent, credible medical records indicate that the Veteran sustained a knee injury during service and had problems with that knee since discharge. The February 2011 examiner noted pain and problems with mobility, and assessed degenerative joint disease of the right knee. The examiner provided a negative nexus opinion, relying on a lack of post-service treatment to find that the Veteran's degenerative joint disease was not related to the confirmed in-service accident. However, the subsequent October 2011 examiner focused on pain and found that the instability and swelling throughout the Veteran's life was consistent with the initial injury. As the Board is unable to distinguish the pain connected with the degenerative joint disease and the instability, it will afford the Veteran the benefit of the doubt and find that service connection is warranted for both of these disorders. ORDER Service connection for a right knee disability, to include instability and degenerative joint disease, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs