Citation Nr: 1817952 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 10-16 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for degenerative joint disease (DJD) of the right knee. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Board (in pertinent part) denied the Veteran's claim for service connection for DJD of the right knee. The Veteran appealed the denial and, in October 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel. As such, the Veteran's claim has returned to the Board for further consideration. The Board notes that the Veteran also has a claim for service connection for a bilateral eye disorder other than arcus senilis and glaucoma, including retinal defect, that was most recently remanded in November 2017. As the claim appears to be undergoing development still at the Agency of Original Jurisdiction (AOJ) and has yet to be recertified to the Board, it is not addressed herein. FINDING OF FACT The most probative evidence of record establishes a diagnosis of DJD of the right knee during the pendency of the appeal that is related to his service. CONCLUSION OF LAW The criteria for the grant of service connection for DJD of the right knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, in view of the Board's favorable decision to herein, further notice and assistance is unnecessary. Legal Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The current disability requirement can be established by showing that the Veteran had the claimed disability either at the time a claim for VA disability compensation was filed or at some time during the pendency of that claim. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases of chronic diseases, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service treatment records (STRs) reflect that radiology studies of the Veteran's knees took place in November 2007. The studies revealed suspected DJD of the knees bilaterally. Further studies were performed in January 2008 and revealed a diagnosis of mild degenerative disease in the bilateral patellofemoral and medial compartments. A February 2008 report of medical history also noted "mild DJD bilat PF + medial compartments." See Report of Medical Assessment. Following his separation from service in May 2008, the Veteran underwent a VA examination of his right knee. See August 2008 Quality Timeliness Customer Service (QTC) Medical Services examination report. X-rays performed in connection with the examination revealed a normal-appearing right knee. No diagnosis of a right knee disorder was provided. The examiner also noted that the Veteran had undergone a left knee arthroscopy in July 2008, but noted that X-rays findings of the left knee were within normal limits. In November 2016, the Board denied the Veteran's claim on the ground that the competent evidence did not establish a disability during the pendency of the appeal. As stated above, the Veteran appealed the denial to the Court, which granted a JMR submitted by the Veteran and VA. In the JMR, the parties agreed that the Board erred by failing to obtain a new or clarifying medical opinion regarding the Veteran's claimed DJD of the right knee. Therefore, the parties agreed to a remand for further development and readjudication. Upon review of the record, the Board finds that the most probative evidence of record establishes a diagnosis of DJD of the right knee during the pendency of the appeal that is related to his service. Imaging studies performed during service clearly establish a diagnosis of DJD of the right knee during service. The service record also includes the images taken during those studies, which were performed only a few months before the Veteran's separation and the August 2008 VA examination. There is no evidence to doubt the credibility of the Veteran's service treatment providers. Turning to the August 2008 VA examination, the Board finds that the negative opinion provided is less than probative. The examiner noted that X-rays conducted in connection with the examination revealed a normal-appearing right knee. Interestingly, the examiner also noted that X-ray findings of the left knee were within normal limits. However, as the examiner himself acknowledged, the Veteran had recently undergone an arthroscopy of the left knee. Further, the examiner did not specifically consider the in-service imaging studies, address the conclusions of the in-service treatment providers, or explain as to how the Veteran's diagnosed arthritis could have resolved in a matter of months, if at all possible. Finally, the Board notes that the Veteran's diagnosis of DJD of the right knee was made close in time to the filing his service-connection claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). Therefore, even if his right knee disorder has since resolved, the benefit of the doubt must be decided in the Veteran's favor. Accordingly, the criteria for the grant of service connection for DJD of the right knee have been met, and further development is unnecessary. See 38 C.F.R. §§ 3.102, 3.303; McClain, 21 Vet. App. at 321. ORDER Service connection for DJD of the right knee is granted. _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs