Citation Nr: 18157954 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-47 231 DATE: December 14, 2018 ORDER Entitlement to service connection for internal derangement of the right knee is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s internal derangement of right knee disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for internal derangement of the right knee have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines Corp. from October 2005 to September 2008, during the Gulf War Era with confirmed foreign service in Iraq. This case comes before the Board of Veteran’s Appeals (Board) from an June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, AL, denying the Veteran’s claim for service connection for internal derangement of the right knee. By way of background, in a February 2014 rating decision, the RO denied the claim for service connection for internal derangement right knee, finding that the Veteran’s service treatment records did not show complaints, treatment or diagnosis of the claimed condition. Thereafter, the Veteran submitted an informal appeal, requesting the RO reconsider the evidence of record. 38 C.F.R. § 20.201. See VA Form 21-0820, June 2014. Additional evidence was submitted in July 2014. The RO issued a second rating decision in December 2014 continuing the previous denial. In February 2015, the Veteran submitted a request to reopen the previously denied claim. See VA Form 21-4138, February 2015. Also, new evidence was received in February and March 2015. In a June 2015 rating decision, the RO reopened claim and continued the denial, finding that the evidence did not show the claimed condition was not incurred in or aggravated by military service. The Veteran filed a timely Notice of Disagreement. The RO issued a Statement of the Case (SOC) in August 2016 again denying the claim. The Veteran perfected his substantive appeal to the Board in VA Form 9 in September 2016. As new and material evidence was received within one year of the February 2014 and December 2014 rating decisions, the rating decisions were not final. Therefore, the issues on appeal from the February 2014 rating decision are properly characterized as a claim for service connection instead of an application to reopen. 1. Entitlement to service connection for internal derangement of right knee The Veteran contends that his internal derangement right knee disability had its onset in service. He maintains that he injured his right knee during a mission in Iraq while dismounting a seven-ton truck, when his right knee popped out of place. Further, he contends that his right knee disability started following this incident and has continued since that time. Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, internal derangement right knee is not a “chronic disease” listed under 38 C.F.R. § 3.309(a) (2017); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(a) and (b) (2017) do not apply to this non-chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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). 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 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. See 38 U.S.C. § 7104(a) (2012). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Turning to the evidence of record, service treatment records reveal that at time of induction the Veteran reported no knee troubles, e.g., locking, giving out, pain, or ligament injury, etc. See Induction Pre-Screen Physical, 2003; Medical Prescreen of Medical History Report, April 2005. However, by May 2006, a Check in Screening Form shows the Veteran reported a chronic knee or “trick knee” condition, therein, he also reported to having sustained physical injuries during active duty. Indeed, Marine Corps outpatient treatment records from November 2006 show the Veteran sustained an injury during his Iraq tour with the 2/2 Golf Company. And a March 2007 treatment records shows the Veteran reported knee pain on occasions. Post-service, private medical treatment records from March 2010 show the Veteran reported having twisted his knee four months earlier, and complaints that his right knee popped as he was getting up, hurt, and that he fell right to the floor. The Veteran was administered an injection and had fluid removed from the right knee. Private outpatient records and a magnetic resonance imaging (MRI) study from August 2011 show a large effusion of the right knee, show a large cartilaginous loose body within the joint space posterior to the apex of the patella, irregularity of the adjacent cartilage of the apex patella; and what [according to the clinician] appeared to be a discrete linear tear within that articular cartilage. The Veteran underwent a right knee arthroscopy in September 2011, notably, the surgical notes state there was significant area of grade III-IV chondromalacia of the entire medial facet in the central region of the patella, and pointed that the patient’s areas of injury were consistent with a prior patellar dislocation. See Congressionals, Dr. D.B. Surgical Notes August 2011; MRI of Clanton, January 2018. In May 2013 the Veteran complained of chronic right knee pain, stating the pain had existed for a few years. A June 2013 MRI showed mild chondromalacia patella, finding the knee was without any major abnormality, the clinician concluded that the knee was without any major abnormality. An MRI from June 2013 showed the Veteran’s right knee medial and lateral menisci and intact without or degenerative change. The report went on to elaborate that there was a finding of irregular loss of cartilage behind the patella as seen on parasagittal images, found normal femoral cartilage, and intact bones. The overall impression was mild chondromalacia patella. The Veteran was afforded a VA examination in January 2014. During the in-person examination the Veteran traced the onset of his right knee condition to an injury he sustained in Iraq dismounting a seven-ton truck, when his right knee popped out place. He reported that the condition got better with initial surgery but indicated that the condition had steadily gotten worse. The examiner remarked that the condition described by the Veteran appeared to be patellar subluxation or dislocation, and confirmed the current diagnosis of internal derangement right knee. The examiner provided a negative opinion, couching his opinion that without adequate supportive documentation being present he could not state that the claimed knee condition is at least as likely due to military service. See VA C&P Exam, January 2014. The Veteran submitted a statement averring that his knee popped out three times during his service in Iraq during his deployment with the 2/2 Golf Company. (See Statement in Support of Claim, February 2015) Private treatment records obtained from the Alabama Orthopedic Center reveal that in April 2015, the Veteran was seen with complaints of knee pain, which he indicated started during service in Iraq. A diagnosis large effusion right knee was rendered. In support of his claim, the Veteran supported a statement from Platoon Senior Corpsman, Dr. E., the medic who was in charge of the field unit when the claimed in-service injury transpired. In his statement, Dr. E. indicated that during Mission Operation Iraqi Freedom, while operating outside the wire during a day mission, the Veteran was dismounting a vehicle requiring a drop of 2-3 feet while in full combat gear, the Veteran stepped of the ramp and onto the ground and injured his right knee. He stated that he could tell the Veteran was in an obvious amount of pain. He examined the right knee and assured the Veteran that no major deformities were present. Dr. E. indicated that the Veteran confirmed he left and heard an audible “pop.” After completing the mission, he re-examined the knee extensively, found no signs or symptoms of obvious deformities, nor laxity within the joint mobility tests, but he did notice moderate discomfort and pain during the examination, and noticed moderate acute swelling, prescribed non-steroidal anti-inflammatory drugs (NSAIDs) and showed the Veteran how to re-wrap his knee. See Buddy Statement, May 2016. The Board acknowledges that the Veteran is competent to provide testimony regarding factual matter of which she has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the diagnosis of the disability falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, such as pain, any opinion concerning the etiology of the disability requires medical expertise that the Veteran has not demonstrated. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board notes that Dr. E. is competent to provide an opinion regarding the claimed knee injury and finds no reason to find his credibility. Thus, the Board finds that the Veteran’s and Dr. E.’s statements are highly probative, and finds that there is no evidence that contradicts these reports and they are consistent with one another. Therefore, affording the Veteran the benefit of the doubt, a preponderance of the evidence indicates symptomatology of internal derangement of the right knee during and since the Veteran left active service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Here, the evidence of record establishes a current internal derangement right knee disability. The evidence establishes the occurrence of an in-service injury. The Board finds there is credible evidence of symptoms of an internal derangement right knee condition in service and symptoms since service. (Continued on the next page)   After resolving all reasonable doubt in the Veteran’s favor, the evidence of record support a finding that is at least as likely as not that the Veteran’s internal derangement right knee was due to an in-service injury. Accordingly, the Board finds that granting service connection for internal derangement right knee is the decision that is most consistent with the VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel