Citation Nr: 1800243 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-32 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Service connection for a left knee disability. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force between May 1981 and May 1985. Later, he served on active duty in the Army from December 1985 to November 1988 This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the Muskogee, Oklahoma RO. In October 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. FINDING OF FACT The probative evidence of record establishes that the Veteran's arthritis and internal derangement of the left knee had its onset in or is otherwise related to his active service. CONCLUSION OF LAW Service connection for arthritis and internal derangement of the left knee is established. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, 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, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran testified that he injured his left knee while in service. He jumped off a truck and felt pain, but did not seek treatment for some 10 days thereafter. He has felt pain since that time. After service, the Veteran first sought treatment for his left knee in March 2004. He reported left knee pain with painful, decreased range of motion. A subsequent examination in February 2007 has similar findings for his left knee. At a VA examination in February 2012, the Veteran was assessed with a diagnosis of bilateral degenerative joint disease (DJD). Therefore, the Veteran has a current diagnosis of left knee DJD; thus, the first prong of service connection, existence of a present disability, is satisfied. Shedden, supra. The Veteran's service treatment records document that he reported left knee pain in September 1981. He was given some palliative medicine, was told to use ice to keep the swelling down, and was told to rest. Knee pain was further reported in December 1981. While not on his separation paperwork of May 1985, in March 1985, treatment records note that he had been treated for knee pain in the past year. There are no further notes in service treatment records for knee pain. Thus, the second prong of service connection, whether there was an in-service event, is satisfied. Id. As the to the third prong of service connection, a nexus between the current disability and the in-service injury or event, the Board has considered the record, including service treatment records, lay statements, and VA examinations. The Veteran had a VA musculoskeletal examination in February 2012. The VA examiner interviewed the Veteran and reviewed his service treatment records. The examiner noted that the Veteran was seen in service for a strain of his left knee and for inflammation. However, the examiner also noted that the Veteran has a current diagnosis of bilateral DJD. Given that DJD is degenerative process, the examiner opined that is less likely than not that a knee strain was a cause of DJD. The examiner further explained that given that there is bilateral degeneration of a similar degree in each knee, the degeneration would indicate that the Veteran's current disability is age, not trauma, related. The VA examiner did not consider the Veteran's reports of pain since service. Specifically, at the examination, the Veteran only complained of pain in the left knee, has historically only complained of left knee pain, and only disturbance in locomotion of the left knee has been noted. Given this, the Board accords little probative weight to the VA examiner's opinion. The Board finds that the Veteran's complaints of left knee pain since he left service to be competent and credible. Further, the Veteran submitted an opinion from his VA medical provider, Dr. H, dated November 2016. After a review of the Veteran's records, an examination of the Veteran, and imaging of the Veteran's left knee, Dr. H. gave the opinion that the Veteran more likely than not has current arthritis and internal derangement of the left knee related to the left knee injury sustained in military. The Board accords great probative weight to Dr. H's opinion. The opinion sufficiently addresses the potential link between the present knee pain and service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the Veteran has established a continuity of symptomology for his claim of left knee DJD, a chronic disorder (arthritis). He has consistently stated that his left knee pain has been present since service. Given this, the Board accords great probative weight to claimant's reports of left knee pain since service and finds that the Veteran's left knee disability is established under continuity of symptomology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that service connection is warranted for a left knee disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that the negative VA opinion did not address the issue of the Veteran's pain since his service, and that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for arthritis and internal derangement of the left knee is granted ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs