Citation Nr: 1802163 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-24 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to May 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2017 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. FINDINGS OF FACTS 1. Resolving all reasonable doubt in favor of the Veteran, his left knee disability was incurred in service. 2. Resolving all reasonable doubt in favor of the Veteran, his right knee disability was incurred in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In his April 1976 service treatment record (STR) entrance report of medical history, the Veteran did not report any complaints or symptomology regarding either of his knees. Similarly, his concurrent entrance medical examination did not find any complaint or symptomology regarding either of his knees. In May 1978, an STR indicated the Veteran suffered a burn and wound to his right knee in his patella region. He received medical care through June 1978. In October 1978, the Veteran's STRs indicate that he complained of right knee pain after hitting his knee on a truck rack. He was diagnosed with a soft tissue injury to the medial lateral collateral ligament area. In January 1979, an STR report of medical history showed that the Veteran reported he was in good health except for his right knee. A concurrent medical examination did not find any complaints or concerns regarding his knees. In May 1979, an addendum STR to his separation examination indicated the Veteran's medical condition had changed since his separation examination in that he suffered from knee ailments. In June 2010, a VA medical center (VAMC) primary care note showed that the Veteran presented with complaints of pain in his left knee. In January 2011, the Veteran had X-rays of his bilateral knees at a VAMC. His left knee X-ray indicated mild arthritic changes and his right knee X-ray was unremarkable. In February 2011, a VA examination diagnosed the Veteran with bilateral knee strain and left knee minor degenerative arthritis changes. The Veteran reported that he had pain in the knees in paratrooper training while in-service. He stated that he did not have private or VA medical care for his knees until 2010. Upon examination, the Veteran's right knee did not show deformity, giving way, instability, stiffness, weakness, or incoordination. He did report pain and flare ups, which he stated were severe and occurred multiple times daily. He stated the flare-ups were a fleeting, stabbing pain which did not interfere with his work. He had no limitations on standing or walking. His knees showed signs of crepitus. His range of motion in both the right and left knee were normal, extension to 0 degrees and flexion to 140 degrees. There was no ankylosis. A left knee X-ray performed in January 2011 indicated minor arthritic changes. The right knee X-ray of the same date was noted to be unremarkable. The examiner was unable to offer an opinion as to the Veteran's bilateral knee disability being related to service as the Veteran's claims file was not available. In April 2011, the examiner was able to review the Veteran's claims file, and provided an addendum to the February 2011 report. The examiner stated that the Veteran's bilateral knee pain was at least as likely as not due to or aggravated by his service injuries. The examiner noted that the Veteran had documented injury to his right knee and had documented his knee pain while in-service. The examiner also noted the Veteran's history of multiple parachute jumps while in-service. Thus, in the examiner's opinion, based on clinical experience and medical knowledge as well as reference medical source, he believed that Veteran's military trauma to knees as well as repeated military trauma had a significant permanent effect on the Veteran's current condition. In May 2011, a VA examination of the Veteran's claims file was performed. The examiner disagreed with the prior determination that the Veteran's bilateral knee disabilities were related to his service. The examiner found that the Veteran did have bilateral knee strain. However, the examiner stated that it seemed less likely than not that the Veteran's current condition was related to his documented right knee injury in service in 1978. The examiner noted that the Veteran did not have any documented problem, injury, or concern relating to parachute jumping while in-service. An August 2011 VAMC record indicated the Veteran underwent an MRI of his left knee, which showed a tear in his medical meniscus. In September 2013, a lay statement received from the Veteran's brother stated that he and his brother were assigned to the same military base at the same time. He reported that he saw the effects of an all-weather parachute jump had on the Veteran. He reported that he saw that both of his brother's legs were banged up and bruised after the all-weather jump. He also reported that he saw that the Veteran had difficulty walking and that he borrowed a crutch from someone in his unit. In August 2017, the Veteran testified before the undersigned Veterans Law Judge. The Veteran stated that he had an all-weather conditions parachute jump in which he injured his knees. He stated that he had bruising on his right side. He stated that he borrowed a crutch from someone in his barracks to assist him walking. He stated he took aspirin for the pain, but that he mainly just dealt with the pain on his own. He reported that the continued to suffer pain in his knees from that time forward, and that it affected his ability to run. He also reported having injured his right knee when he hit it on a truck rack while in-service. He stated that he did not seek treatment after he separated from service because he could not afford medical care. Based on the foregoing, the Board finds that all doubt should be resolved in the Veteran's favor, and that service connection should be granted for his left and right knee disabilities. The record shows that the Veteran has a current diagnosis of bilateral knee disability and has continuously related his bilateral knee pain to his service. He had an in-service injury to his right knee and in his May 1979 separation examination addendum, he reported knee ailments. Additionally, the February 2011 examiner, who performed an in-person examination, opined that the Veteran's bilateral knee disabilities were at least as likely as not related to or aggravated by his in-service knee complaints. Furthermore, the Veteran has consistently related his bilateral knee pain to his service and has submitted a lay statement indicating that his bilateral knee pain began after his all-weather parachute jump. The Veteran also testified as such in his August 2017 hearing. The Veteran is competent to provide evidence regarding his bilateral knee symptoms that he experienced at any time, including during and since service separation, as those symptoms -i.e. pain and swelling - are apparent to the Veteran and experienced through his senses. Lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159 (a)(2) (2017). Here, it is clear that the Veteran's bilateral knee symptomology was such that it was readily observable by the Veteran, and his brother, and experienced through the Veteran's senses. The Board finds the February 2011 VA examiner's medical opinion highly probative to the issue of whether the Veteran's bilateral knee disabilities are related to service or a service connected disability. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and an interview of the Veteran. The examiner's review of the Veteran's claims file consists of his service treatment records and post-service medical evidence, and his contentions, upon which the examiner relied upon in giving his opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinion. The Board notes that the May 2011 VA examination was in opposition to the February 2011 VA examination. However, in deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) ("The credibility and weight to be attached to these opinions [are] within the province of the adjudicators.") So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiner and whether or not, and the extent to which, the examiner reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. at 40. Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In regards to the VA examinations of evidence in this matter, though the May 2011 examiner did not relate the Veteran's bilateral knee disability to service, the examiner also did not report the Veteran's positive report of knee ailments in his May 1979 addendum. Furthermore, the May 2011 examiner did not conclusively state that the Veteran's bilateral knee disabilities were less likely than not related to service. That examiner simply stated that the Veteran's knee disabilities "seemed" less likely than not related to service. As such, the Board assigns no probative weight to the May 2011 VA examination. The Board, therefore, assigns greater probative value and weight to the February 2011 VA examination report, which relates the Veteran's bilateral knee disabilities to his service. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for a left knee disability and a right knee disability is warranted. ORDER Entitlement to service connection for a left knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for a right knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs