Citation Nr: 1817698 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-29 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran presented testimony at a "Travel Board" hearing held at his local RO before the undersigned Veterans Law Judge in June 2015. A copy of the transcript of that hearing is of record. FINDING OF FACT The Veteran's meniscus tear is causally related to left knee injury sustained during his period of active military service. CONCLUSION OF LAW The criteria for service connection for meniscus tear of the left knee have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed 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 or aggravation 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 or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In determining whether statements made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the United States Court of Appeals for the Federal Circuit has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Veteran asserts that he suffers from a left knee disability caused by an in-service injury. Specifically, the Veteran describes originally injuring the knee while playing football on a weekend during his active duty in the Navy, and continuing to experience pain and occasional giving way of the knee since that time. X-ray examination of the left knee in February 2009, October 2010, and December 2012 showed tricompartmental degenerative changes and a private MRI from February 2014 demonstrated complex tears of the anterior and posterior horns of the medial meniscus, probable flipped meniscal fragment, and severe maceration and degeneration of the lateral meniscus. The Veteran thus has a current left knee disability, and the first criterion for service connection has been met. The Veteran's service treatment records confirm his account of an in-service injury, documenting that he was brought to sickbay with a left knee injury from a flag football game in September 1988. It was noted that the injury was sustained when he received a blow to the lateral aspect of the knee, inverting it. The Veteran reported pain over the tibial plateau at that time. X-rays were negative for fracture and the Veteran was assessed with left knee sprain and assigned to light duty. The Veteran's service treatment record show that he was treated for three additional instances of left knee complaints/injury: a twisting inward (inversion) when he stepped on an object that gave way in January 1989, assessed as probable sprain; stiffness and pain after jogging in May 1989; and pain and swelling of the left knee, with decreased range of motion, assessed as grade 1 MCL strain of the left knee. The evidence overwhelmingly demonstrates that the Veteran sustained a left knee injury during service; thus, the second criterion for service connection has been met. The Veteran was provided with a VA examination in December 2012. The examiner noted that the Veteran sustained a left knee strain in 1988 while playing flag football in the Navy and that the Veteran reported that his knee buckles for no apparent reason two or three times per year resulting in a couple of day of swelling and increased pain. The examiner opined that it was less likely than not that "one soft tissue injury in 1988 with normal exams" would contribute to the Veteran's current diagnosis of moderate degenerative arthritis, a bone and cartilage condition, 25 years later. The Board notes, however, that rather than "one soft tissue injury," the Veteran's service treatment records document that he was treated for three separate in-service events involving his left knee. While true that X-rays taken at the time did not show loose bones or fractures, it is inaccurate to describe the examinations as "normal," as records from September 1988 and April 1990 both documented swelling of the knee, with tenderness and limited range of motion. At the June 2015 Board hearing, the Veteran testified that since his September 1988 in-service injury, he has experienced regular flare-ups of left knee pain with the knee giving out a few times per year. He stated that he did not seek treatment immediately following his separation from service due to a lack of insurance, and reported that he learned to live with the pain and occasional giving away of the knee until his symptoms increased around 2009 or 2010. In 2012, individuals who knew the Veteran since before he went into the military submitted lay statements corroborating that the Veteran demonstrated obvious knee problems and would talk about his left knee pain ever since returning from service. The Veteran testified that he was examined by a private physician in February 2014, who diagnosed left knee meniscus tear and noted on the report that it was from a football injury in the Navy. He further testified that she commented that it was an old injury. The February 2014 MRI report is of record, and records a history of increasing knee pain and weakness, with a handwritten note that the Veteran had a football injury in the Navy. In a March 2014 followup treatment record, the physician wrote that the Veteran's chief complaint was left knee pain, with a handwritten notation that it is secondary to a football injury in the Navy. While this notation could merely be a recording of the Veteran's report of his belief regarding the origin of his left knee pain, when considering the Veteran's testimony regarding the physician's oral statements to him, credible evidence of continuous left knee symptoms since service without other post-service injury, and radiographic imaging demonstrating significantly greater left knee disability when compared to the right knee, the Board finds the evidence to have at least reached the point of equipoise so as to allow for resolution of the doubt in the Veteran's favor as to whether his current meniscus tear is related to his in-service injury. Thus, resolving all reasonable doubt in the Veteran's favor, an award of service connection for left knee meniscus tear is warranted. ORDER Service connection for left knee meniscus tear is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs