Citation Nr: 18148201 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-08 453 DATE: November 7, 2018 ORDER Service connection for a right knee disability, diagnosed as a lateral meniscus tear, status post repair, and a chondral defect of the medial femoral condyle, is granted. Service connection for a left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle, is granted. FINDINGS OF FACT 1. A right knee disability, diagnosed as a lateral meniscal tear, status post repair, and a chondral defect of the medial femoral condyle, had its onset in service. 2. A left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle, had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, diagnosed as a lateral meniscal tear, status post repair, and a chondral defect of the medial femoral condyle, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). 2. The criteria for service connection for a left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 2002 to November 2002, June 2003 to August 2003, June 2004 to May 2005, and December 2005 to November 2006, including service in Iraq. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a Department of Veterans Affairs (VA) Regional Office (RO) decision denying service connection for right knee and left knee disabilities. In August 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. Right Knee Disability and Left Knee Disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, on or after August 2, 1990. 38 U.S.C. § 1110. Therefore, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). Under 38 C.F.R. § 3.317, compensation may be warranted on a presumptive basis for disabilities due to undiagnosed illness as well as medically unexplained chronic multisymptom illnesses. See 38 C.F.R. § 3.317 (a). This means that even if a Veteran’s symptoms are attributed to a known clinical diagnosis, the presumptive provisions related to Gulf War service still apply. In particular, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Therefore, even if a multisymptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran contends that he has a right knee disability and a left knee disability that are related to service. He specifically maintains that he developed chronic bilateral knee pain and swelling after his deployment to Iraq in 2006 due to wearing heavy armor and carrying heavy equipment. He indicates that he complained to a corpsman and that he was told to take Motrin. The Veteran reports that he sustained accumulated damage to both of his knees while serving in combat and carrying heavy loads over varying terrain while running and jumping. He states the he served in the Marine Corps Reserve until 2008, and that during that time, he continued to experience pain and locking of both of his knees. The Veteran essentially asserts that he suffered right knee and left knee problems during service and since service. The Veteran served on active duty in the Marine Corps from May 2002 to November 2002, June 2003 to August 2003, June 2004 to May 2005, and December 2005 to November 2006, including service in Iraq. His service personnel records indicate that he served in the Marine Corps Reserve in 2007 and 2008. Such records do not specifically show decorations evidencing combat. A DD Form 2014 for the Veteran’s period of active duty from December 2005 to November 2006 indicates that he participated in Operation Iraqi Freedom from December 2005 to November 2006. A DD Form 214 for a period of active duty form June 2004 to May 2005 notes that the Veteran was activated in support of Operative Iraqi Freedom, with a location in Al Asad Iraq, from August 2004 to February 2005. The Veteran’s service treatment records do not specifically show treatment for right knee problems or left knee problems. Such records include post-deployment health assessment reports, which include notations that the Veteran indicated that he had swollen, stiff, or painful joints. The post-deployment health assessment reports do not specifically show diagnoses of right knee or left knee disabilities. Post-service private and VA treatment records show treatment for variously diagnosed right knee and left knee problems, including a lateral meniscus tear, with iliotibial band friction syndrome of the right knee; status post right knee partial lateral meniscectomy, with medical compartment chondral damage; a left knee lateral meniscus tear; lateral meniscus tears of the bilateral knees, status post a lateral meniscus repair on the right; bilateral chondral defects of the medial femoral condyle, right greater than left; meniscal tears of both knees; and advanced chondromalacia of both knees in addition to meniscal tears. A May 2009 private treatment report from J. A. Diaz, M.D., notes that the Veteran was seen with a chief complaint of swelling and pain in his right knee. Dr. Diaz reported that the Veteran complained of swelling in the lateral portion of the right knee, which was aggravated by activity. Dr. Diaz indicated that the Veteran stated that he had intermittent pain over the last two years. Dr. Diaz related that the Veteran also complained of similar problems, although not as severe, on the contralateral side. It was noted that the Veteran denied any mechanic symptoms or instability. The impression was rule out a lateral parameniscal cyst, and possible discoid meniscus. An August 2009 treatment report from Dr. Diaz indicates that the Veteran returned for a follow-up. Dr. Diaz reported that the Veteran underwent a magnetic resonance imaging (MRI) study in August 2009, and that there was indeed a tear of the lateral meniscus of the left knee. The impression was a lateral meniscus tear of the left knee, and status post a right knee partial lateral meniscectomy, with compartment chondral damage. A December 2014 statement from Dr. Diaz indicates that the Veteran underwent surgery on his right knee in June 2009. It was noted that intraoperative arthroscopic photographs were obtained and that the findings include advanced areas of chondromalacia and articular damage, with full thickness, on the medial femoral condyle. Dr. Diaz reported that there was also a lateral meniscus tear and a parameniscal cyst. Dr. Diaz stated that at the time of the Veteran’s right knee surgery, he was approximately thirty-two years old and that such findings were atypical for a patient of his age. Dr. Diaz indicated that in the absence of discrete trauma, those findings were consistent with traumatic overuse, with secondary degeneration of the articular cartilage surface. Dr. Diaz maintained that it was very likely that the Veteran’s combat experiences caused his current condition. Dr. Diaz stated that the Veteran also had a MRI study of the left knee in August 2009, which shows a tear of the lateral meniscus and chondromalacia of the medial femoral condyle. Dr. Diaz commented that those findings were similar to the contralateral side, and were more likely than not the result of the Veteran’s combat experiences and training. Dr. Diaz indicated that the Veteran had full thickness articular cartilage loss and that he was currently in his thirties. It was noted that there was a risk of continued progressive knee osteoarthritis, with the need for knee replacements in the future. A December 2014 VA knee and lower leg conditions examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he developed chronic knee pain and swelling since his deployment in Iraq in 2006 due to wearing heavy armor and carrying equipment for seven months while deployed. It was noted that the Veteran denied that he had acute knee trauma. The Veteran stated that he complained to his corpsman and that he would be told to take Motrin. The examiner reported that the Veteran had lateral meniscus tears of the bilateral knees, status post a lateral meniscal repair on the right knee, and bilateral knee chondral defects of the medial femoral condyles, with the right worse than the left. The diagnosis was meniscal tears of both knees. The examiner indicated that the Veteran’s bilateral knee lateral meniscal tears, with bilateral chondral defects of the medical femoral condyles, right greater than left, were less likely as not caused by, or a result of, his military service, and were at least as likely as not related to his running and sports activities after returning from active duty. The examiner stated that although the Veteran claimed in 2013 that his knee pain started during his deployment, there was absolutely no objective evidence of a knee condition while in the service, or within a year of his active duty in 2006. The examiner reported that the Veteran’s service treatment records were silent for knee complaints and for a knee condition. The examiner indicated that the Veteran had ongoing care at the VA from 2005 to the present, with frequent medical visits in which he had ample opportunity to report knee complaints. The examiner stated that the medical notes show that the Veteran was very active and that he was involved in biking, running, and even running marathons. It was noted that the Veteran did not mention that he had bilateral knee pain since his return from Iraq until August 2013. The examiner reported that notes from a private orthopedist from 2009, when the Veteran was first treated for a knee condition, do not relate the Veteran’s knee conditions to his military service. The examiner related that, recently, the same orthopedist provided a letter which stated that the Veteran’s combat experiences very likely caused his current knee condition, but that he provided no rationale. The examiner maintained that the orthopedist did not address the Veteran’s extensive running and sports activities and did not have access to the objective evidence of record in the military files. A November 2015 statement from Dr. Diaz notes that he reviewed the Veteran’s chart again. Dr. Diaz stated that he would like to be very clear regarding the nature of the Veteran’s injuries. Dr. Diaz indicated that the Veteran was thirty-seven years old and that he had advanced chondromalacia in both knees, in addition to meniscal tears. It was noted that, in particular, the Veteran had areas of full thickness cartilage loss, which could be explained only as a result of significant trauma. Dr. Diaz maintained that the excess load carried by the Veteran on foot patrols, combined with his extended running and jumping, led to the above noted articular cartilage and meniscal damage. Dr. Diaz reported that the location and damage was consistent with repetitive overload. The probative value of medical opinion evidence “is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators...” Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the VA examiner, pursuant to the December 2014 VA knee and lower leg conditions examination report, following a review of the claims file, indicated that the Veteran’s bilateral knee lateral meniscal tears, with bilateral chondral defects of the medical femoral condyles, right greater than left, were less likely as not caused by, or a result of, his military service, and were at least as likely as not related to his running and sports activities after returning from active duty. The examiner specifically reported that there was absolutely no objective evidence of a knee condition while in the service, or within a year of his active duty in 2006, and that the Veteran had ongoing care at the VA from 2005 to the present, with frequent medical visits in which he had ample opportunity to report knee complaints. The examiner further stated that the medical notes show that the Veteran was very active and that he was involved in biking, running, and even running marathons, and that he did not mention that he had bilateral knee pain since his return from Iraq until August 2013. The examiner further maintained that notes from a private orthopedist from 2009, when the Veteran was first treated for a knee condition, do not relate his knee conditions to his military service. The examiner noted that the same orthopedist stated that the Veteran’s combat experiences very likely caused his current knee condition, but that he provided no rationale, and did not address the Veteran’s extensive running and sports activities and did not have access to the objective evidence of record in the military files. The Board observes that the examiner stated that the notes from a private orthopedist, Dr. Diaz, from 2009, when the Veteran first treated for a knee condition, do not relate his knee condition to his military service. The Board notes, however, that a May 2009 treatment report from Dr. Diaz specifically indicates that the Veteran complained of intermittent right knee pain, as well as contralateral side (i.e., left knee) pain, over the last two years. The Board notes that two years prior to May 2009 would be within a year of the Veteran’s separation from his last period of active duty in November 2006. Additionally, although the examiner found that the Veteran’s bilateral knee disabilities were at least as likely as not related to his running and sports activities following his return from active duty, the examiner did not specifically explain why his post-service running and sports activities caused his bilateral knee problems, but that his running and activities during service, did not. The examiner also did not have the opportunity to address a subsequent November 2015 statement from Dr. Diaz that again related the Veteran’s advanced chondromalacia in both knees, with meniscal tears, to the excess load he carried on foot patrols, combined with his extended running and jumping. Therefore, the Board finds that the opinions provided by the examiner, pursuant to the December 2014 VA knee and lower leg conditions examination report, have less probative value in this matter. The Board notes that in a December 2014 statement, Dr. Diaz opined that it was very likely that the Veteran’s service caused his current right knee condition and left knee condition. Additionally, in a subsequent November 2015 statement, Dr. Diaz indicated that the Veteran was thirty-seven years old, that he had advanced chondromalacia in both knees, in addition to meniscal tears, and that he had areas of full thickness cartilage loss, which could be explained only as a result of significant trauma. Dr. Diaz maintained that the excess load carried by the Veteran on foot patrols, combined with his extended running and jumping, led to the above noted articular cartilage and meniscal damage. The Board notes that although Dr. Diaz reported that he reviewed the Veteran’s medical chart, there is no specific evidence that he reviewed the Veteran’s entire claims file. Although claims file review is not necessary, the probative value of a medical opinion is based on its reasoning and its predicate in the record so that the opinion is fully informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes, however, that the opinions provided by Dr. Diaz are more consistent with the evidence of record, including the Veteran’s reports of right knee pain and left knee pain, which began approximately within a year of his separation from a period of active duty in November 2006. Additionally, the Veteran is competent to report right knee and left knee problems during service and since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the opinions provided by Dr. Diaz, pursuant to his December 2014 and November 2015 statements, are the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). The Board observes that the Veteran is currently diagnosed with a right knee disability, diagnosed as a lateral meniscus tear, status post repair, and a chondral defect of the medial femoral condyle, and with a left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle. The Board finds the Veteran’s reports of right knee and left knee problems during and since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right knee disability, diagnosed as a lateral meniscus tear, status post repair, and a chondral defect of the medial femoral condyle, and his left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle, commenced during his periods of active duty. In light of the evidence, to specifically include the probative statements from Dr. Diaz, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a right knee disability, diagnosed as a lateral meniscus tear, status post repair, and a chondral defect of the medial femoral condyle, and for left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle. Therefore, service connection for a right knee disability, diagnosed as a lateral meniscus tear, status post repair, and a chondral defect of the medial femoral condyle, and for left knee disability, diagnosed as a lateral meniscus tear, and a chondral defect of the medial femoral condyle, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel