Citation Nr: 18151768 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-23 022 DATE: November 20, 2018 ORDER Entitlement to service connection for DJD of the left knee granted. REMANDED Entitlement to an increased rating for DJD of the right knee in excess of 10 percent prior to May 29, 2013, and in excess of 30 percent from July 1, 2014 forward, is remanded. FINDING OF FACT A left knee disorder, diagnosed as a DJD, had its onset in service. CONCLUSION OF LAW The criteria for establishing service connection for a left knee disorder, diagnosed as DJD, have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1972 to December 1979 and from January 1991 to March 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The Veteran previously submitted a claim of entitlement to service connection for a left knee disorder which was denied in September 2008 rating decision on the basis that the Veteran did not have a chronic disability. The September 2008 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). The evidence received since the September 2008 final decision includes VA treatment records indicating that the Veteran has a diagnosis of DJD of the right knee. Consequently, as the newly received evidence indicates that the Veteran has a chronic disability, that may be related to his military service, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the September 2008 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left knee disability. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (b), (d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The list of chronic diseases in 38 C.F.R. § 3.309 (a) includes arthritis or DJD. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. VA examination in May 2012 reflects a diagnosis of DJD of the left knee. In support of the claim the Veteran has submitted several lay statements noting the onset of his left knee symptoms in service and the persistence of those symptoms since his separation. Specifically, the Veteran reported that “because of the pain I was experiencing in both knees, I was issued a temporary profile for 90 days.” This statement is confirmed by the Veteran’s service treatment records which contain a September 1979 physical profile showing that the Veteran was given a temporary profile for “degenerative changes” in both knees. The Board notes that the Veteran is competent to report factual matters of which he had first-hand knowledge, such as experiencing left knee symptoms, including pain, since active service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Moreover, lay evidence can 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Accordingly, the Veteran is competent to report experiencing continuing knee symptomatology during and since his active service, as the onset, frequency, and duration of such symptoms as pain and limitation of motion are certainly capable of lay observation. 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). The Board additionally finds his competent statements concerning the onset and continuity of left knee pathology during and since his active service to be credible. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). In this regard, the Veteran’s service records reflect that he was placed on a temporary profile for knee problems in 1979 during active duty. VA and private treatment records also reflect that he has consistently reported experiencing orthopedic symptomatology attributable to degenerative changes since at least the 1990s. For example, in March 1994, East Memphis Surgery Center diagnosed the Veteran with synovitis of the left knee with chondromalacia patella, of the right knee. A VA examination in November 1999 diagnosed the Veteran with mild chondromalacia of the patella, of the left knee. A VA examination report dated in January 2006 noted that the Veteran had joint line tenderness and crepitation in his left knee. Private treatment records dated in November 2006 and September 2007 show that the Veteran experienced a torn meniscus and was given lidocaine injections into his knees. Additionally, in a VA examination in May 2012, the Veteran was diagnosed with DJD and a narrowing of the medial knee joint cartilage of the left knee. Accordingly, the Veteran’s competent and credible report of a continuity of left knee symptomatology, in conjunction with the competent and credible evidence identifying in-service injuries and the medical evidence confirming the subsequent development of a knee pathology suggests a link between his left knee disability and his active service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Although there is evidence in the form of a May 2012 VA examination report disassociating the Veteran’s current left knee disability from his active service, the examination report does not constitute probative medical evidence, as it fails to adequately account for the Veteran’s competent and credible lay statements as to the onset of symptoms, specifically failing to address the Veteran’s credible complaints of ongoing left knee pathology since service or to reconcile these complaints with the ultimate conclusion. Accordingly, the May 2012 VA examination report is inadequate, and cannot form the basis for a denial of entitlement to service connection. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). Therefore, given the currently diagnosed disability of the left knee, the competent and credible evidence of continued left knee pathology during and since the Veteran’s active service, and in the absence of any probative evidence to the contrary, the Board resolves reasonable doubt in favor of the Veteran. Accordingly, all the elements of the requirements for service-connection for a left knee disability have been met. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an increased rating for DJD of the right knee During the course of this appeal, the U.S. Court of Appeals for Veteran’s Claims (the Court) issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran’s right knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dion Roberts, Law Clerk