Citation Nr: 1802892 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 06-33 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to May 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran currently resides in Germany and jurisdiction over the claims folder is held by the Pittsburgh RO. This claim was previously before the Board in September 2010, at which time it was remanded for additional development. FINDING OF FACT The Veteran's bilateral knee disability, diagnosed as bilateral femoral patellar arthrosis and left knee medial and retropatellar gonarthritis, is related to service. CONCLUSION OF LAW A bilateral knee disability, to include bilateral femoral patellar arthrosis and left knee medial and retropatellar gonarthritis, was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 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 bilateral knee disability, essentially arguing that he has experienced instability and pain since basic training. 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. §§ 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). In May 1993, a report of medical history noted that the Veteran had complained of intermittent knee pain for about six months. Pursuant to the September 2010 Board remand, the Veteran received an examination in February 2012, and the physician indicated that the Veteran's left knee problems started in 1979 during basic training. The knee slowly deteriorated with his basic duties and physical training. As a result of the examination, the Veteran was diagnosed with, amongst other things, grade I left side medial and retropatellar gonarthritis (osteoarthritis). The examiner opined that the left knee symptoms presented at the beginning of the Veteran's military service and worsened over the course of his service. He indicated that the symptoms could be related to the problems from service and may have progressively worsened over the past 20 years. The Veteran was able to walk for 10 minutes, but then his knee pain would increase; climbing stairs could also produce pain. On examination, the left knee was negative for any effusion and the collateral ligaments appeared stable. In January 2016, a VA examiner provided etiological opinions for the Veteran's diagnosed knee disorders. The examiner reviewed the claims file and noted that the Veteran was seen by medical personnel in July 1984 for right knee pain, but there were no other service treatment notes concerning the knees found during his time in active service. The examiner noted the pain found on the May 1993 separation examination, and also found that there were no notes concerning the Veteran's knee condition until a December 1999 diagnosis of bilateral mild to moderate femoral patellar arthrosis. Upon review of the entire record, the examiner concluded that the July 1984 treatment was an isolated incident, and the Veteran did not complain of any further knee issues until the May 1993 separation examination. There was no diagnosis made of a knee condition until 1999, and that diagnosis of femoral/patellar arthrosis was confirmed in 2002, 2004, and 2012. The examiner opined that it was not possible to say with any adequate degree of certainty that the current findings and diagnosis of the Veteran's bilateral knee condition were related to an event or injury during the time in active service. As there was a lengthy time frame involved, the examiner concluded that the findings could be related to aging. As such, it was less likely than not that any diagnosed knee conditions were etiologically related to any incident during service, to include the Veteran's complaints of knee pain. The Veteran submitted correspondence in September 2016 and indicated that he suffered from knee problems from basic training until his departure from service. His right knee would lock and pop out and he had pain in his left knee cap. He remembered injuring his left knee in service, when he jumped into his tent and fell into a ramp. The Board finds that service connection for the Veteran's bilateral knee disability is warranted. The Veteran indicated that his knee problems began during basic training and that he has had continuous symptoms. Moreover, the January 2016 medical opinion is probative of the Veteran's claims. The competent, credible medical records corroborate the Veteran's claims that he had continuous symptoms of a knee disability during service and had problems since discharge. The examiner provided a negative nexus opinion, but did not give the Veteran the benefit of the doubt; while the examiner was not sure if the bilateral knee disability was related to service or to aging, he still concluded it was less likely than not related to service. As such, the Board finds that the evidence is in equipoise as to whether the Veteran's condition had its onset in service. Consequently, affording the Veteran the benefit of the doubt, the Board finds that service connection for a bilateral knee disability, to include bilateral femoral patellar arthrosis and left knee medial and retropatellar gonarthritis, is therefore warranted. ORDER Service connection for a bilateral knee disability, to include bilateral femoral patellar arthrosis and left knee medial and retropatellar gonarthritis, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs