Citation Nr: 1754795	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  13-10 307	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for left knee osteoarthritis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

L. Leifert, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for a left knee osteoarthritis.  

In May 2017, the Veteran testified before the undersigned Veterans Law Judge in a video-conference hearing; a transcript of the hearing is associated with the claims file.


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's left knee osteoarthritis is related to active military service.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee osteoarthritis are met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).  Consistent with this framework, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  Moreover, a Veteran may establish service connection through a demonstration of chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b), but only if service connection is for a chronic disease listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  Arthritis is one such disease.  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, service treatment records (STRs) are silent for any complaints, treatments, or diagnoses of left knee disability.  An August 1970 pre-induction report of medical examination reflects a normal evaluation of the musculoskeletal system, and an April 1972 separation report of medical examination likewise indicates a normal evaluation of the musculoskeletal system.  Nevertheless, in August 2012, the Veteran submitted a treatment record from U.S.A. Health Clinic, Grafenwohr, Germany, dated October 1971, during the Veteran's service.  The record reflects that the Veteran fell off a "track" the night before.  The Veteran reported difficulty walking and pain in his left leg and foot since then.  On examination, there was no obvious swelling or deformity, very tender medial joint line of left knee, intact ligaments and patella, and no effusion.  The left ankle was tender, especially on the lateral malleolus and par, and had most of its range of motion.  X-rays of the ankle showed no fracture, and the Veteran was given crutches and wraps.

The Veteran also submitted a hospital bill for a meniscectomy performed in November 1975.

During his May 2017 hearing, the Veteran testified that he injured his left knee during his deployment in Germany and that this was the only time he was ever in Germany or saw someone during service in regards to his left knee.  He stated that he did not seek treatment for the knee until 2010, and instead self-medicated with pain medication.  He reported that he had continuous pain in the left knee since he first injured it during service, to include trouble flexing it, and that it only became better after he underwent a total knee replacement in November 2016. 

In May 2017, the Veteran submitted a letter from Dr. J.C., who noted that in September 2016, the Veteran stated that his left knee issues were from before his military service.  At that time, Dr. J.C. diagnosed severe left knee osteoarthritis and noted that the Veteran had a total knee replacement in November 2016.

In June 2017, the Veteran submitted a letter from Dr. L.S.A., who noted that the Veteran was seen in October 1971 for a left knee injury after falling from a track.  The Veteran reported that he "suffered pain in the left knee continually since that point," and that in 1975 he underwent left knee surgery.  The Veteran stated that he was unable to flex his knee after his 1975 surgery until he underwent total knee replacement.  Dr. L.S.A. noted that the Veteran continued to have some left knee discomfort to the present.

Upon review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left knee osteoarthritis is etiologically related to his military service.  

As an initial matter, the Board notes that the Veteran has been diagnosed with left knee osteoarthritis and has had a total knee replacement.  As such, he has a current disability and meets the first criteria for service connection.

In addition, while STRs in the service department records envelope do not reflect complaints, treatments, or diagnoses for a left knee disability, the Veteran provided an October 1971 treatment record from U.S.A. Health Clinic, reflecting a left knee injury.  The Board notes that the Clinic is an Army Health Clinic located in Grafenwoehr, Germany, and that the Veteran testified at this hearing that he has never gone to Germany other than during his deployment in 1971.  As such, the Board finds that the Veteran had service in Germany, and that there was an in-service injury in October 1971.  Thus, the Veteran meets the in-service injury criterion for service connection.

Therefore, the Veteran's claim turns on whether there is a nexus between the Veteran's in-service injury and current disability.  Here, the Veteran testified that he first injured his left knee during service when he fell off a "track," and that he continued to have pain in the joint until his meniscectomy in November 1975.  The Veteran's statements are consistent with the evidence of record including the treatment note from the U.S.A. health clinic in Grafenwohr.  Further, Dr. L.S.A. noted that the Veteran had trouble flexing his knee since the November 1975 surgery, until he underwent a total knee replacement in November 2016.  While Dr. J.C. noted that the Veteran's left knee problem may have started before service, the Board notes that the Veteran's August 1970 pre-induction examination reflects a normal evaluation for the musculoskeletal system.  The Veteran is thus presumed to have been sound as to his left knee when he entered service, and this presumption has not been rebutted with clear and unmistakable evidence of preexistence and lack of aggravation.  38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

Given the notation of in-service left knee injury and continuous left knee symptoms, and absence of conflicting evidence, the evidence is at least evenly balanced as to whether the Veteran's left knee osteoarthritis is related to active military service.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for left knee osteoarthritis is granted.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs