Citation Nr: 18157259 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 10-30 685 DATE: December 13, 2018 ORDER Service connection for a left knee disability is granted. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) show that he sought treatment for a left knee injury sustained while riding a horse at the Headquarters and Headquarters Detachment (HHD) at Fort Hood, Texas. 2. On examination in May 1991, prior to separation from service, the Veteran reported a history of a swollen or painful left knee that bothered him with application of pressure, such as with climbing stairs. He stated that the left knee had been symptomatic since the horse riding injury at the HHD. 3. Following separation from service, the Veteran continued to experience left knee pain and swelling, for which he underwent arthroscopic surgery in 1998. 4. The Veteran’s currently diagnosed degenerative arthritis of the left knee is related to the injury sustained in service. CONCLUSION OF LAW The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from November 1987 to June 1991, to include service in Southwest Asia from October 1990 to April 1991. These matters are before the Board of Veteran’ Appeals (Board) on appeal from a December 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This issue was previously before the Board in January 2014, June 2016, and June 2017 when it was remanded for further development. In June 2017, the Board also remanded the issue of entitlement to service connection for a left shoulder condition. That issue was granted by the RO in a June 2018 rating decision. As this grant constituted full award of the benefits sought on appeal, this issue is not currently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to service connection for a left knee disability Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). As noted in the above findings of facts, the Veteran injured his left knee in service, and he has a current diagnosis of degenerative arthritis. The Board finds that these facts satisfy the first two elements for service connection. The remaining element is a nexus between the Veteran’s current disability and his in-service injury. A chronic disease that qualifies under 38 C.F.R. § 3.303(b) benefits from service connection via continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 - 1339 (Fed. Cir. 2013). With chronic disease shown as such in service 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…Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, the Veteran qualifies for consideration under 38 C.F.R. § 3.303(b) as he has been diagnosed with a chronic condition specifically enumerated under 38 C.F.R. § 3.309(a). Although the Veteran qualifies for consideration under 38 C.F.R. § 3.303(b), it must be determined whether he has experienced continuity of symptomatology because he was not diagnosed with a chronic condition while in service, or within one year after his separation from service. See 38 C.F.R. § 3.303(b). The Veteran has repeatedly stated that he continually experienced left knee pain since his in-service injury. A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Therefore, the Board finds that the Veteran’s lay statements regarding his persistent left knee pain since service are competent based on the evidence of record and support continuity of symptomatology. The Veteran’s statements regarding continuity of symptomatology are corroborated by testimony provided by his spouse, who has observed the Veteran to experience discomfort in his left knee. The next question is whether the statements provided by the Veteran and his wife are credible based on the evidence. The STRs clearly document that he sustained a left knee injury and that he reported a continuity of pain and swelling upon examination prior to separation from service. The Veteran stated in a July 2011 RO hearing that he does not like going to the doctor and as such generally self-treated with over-the-counter pain medication. The Veteran’s wife provided witness testimony to the fact that he has had continuing pain in his left knee since his return from service, and that she has had to do a lot of the work due to the Veteran being in such pain. A September 1998 medical note diagnosed the Veteran with chronic knee pain, and a September 1998 letter from the Veteran’s doctor confirms that he has had chronic knee pain. Moreover, medical documentation and statements from the Veteran and his wife demonstrate that the Veteran underwent left knee arthroscopy. This evidence establishes that the statements provided by the Veteran regarding his ongoing knee pain since his injury in the service are credible. It is mentioned in the record that the Veteran was involved in a vehicle accident in July 1995. Clinical records dated the day following the accident show that the Veteran reported having been involved in a head on collision, and that since the accident, he had been experiencing nausea, headaches, and “multiple aches.” Physical examination revealed the presence of multiple bruises but no specific injury of the left knee. In the July 2011 RO hearing, the Veteran recalled the accident to have been minor, and that he did not injure his left knee at that time. No evidence in file contradicts the Veteran’s statement. Therefore, it has not been clearly established that the Veteran’s left knee condition is attributable to an intercurrent cause. See 38 C.F.R. § 3.303(b). The September 2017 examiner opined that it was less likely than not that the Veteran’s current knee condition was related to his in-service injury. The examiner reasoned that because there was no evidence of continued medical care for the knee condition a nexus has not been established. But the absence of evidence demonstrating continued medical care is not evidence the Veteran did not suffer from the left knee condition since service. Therefore, the rationale of the examiner is flawed. The examiner noted that the Veteran did sustain an injury to his left knee during service, and also noted that the Veteran’s knee pain had continued to increase since service. However, in providing a negative nexus opinion, the examiner failed to take into consideration the Veteran’s reports that he experienced left knee pain continually since his separation from service. In addition, the examiner indicated there was no evidence of knee injury or pain on the Veteran’s separation examination. However, this finding was inaccurate, as the Veteran’s separation examination notes that he reported a swollen or painful left knee joint since the horse riding injury at the HHD. Therefore, the September 2017 is inadequate, and is entitled to no probative weight. As the preponderance of the evidence supports that incurrence of a chronic left knee disability in service, service connection is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Temple, Associate Counsel