Citation Nr: 1825294 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-37 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral knee strain. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from July 1988 to February 1993. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for injury to both knees, to include osteoarthritis. Various ROs have had jurisdiction over this case, most recently the Montgomery, Alabama RO, which certified the appeal to the Board. The Veteran is represented by the Georgia Department of Veterans Services, as indicated in a June 2006 VA Form 21-22. As the Board is granting the benefit sought in full, there is no prejudice from any issue with regard to the appropriate representation. In June 2007, the VA issued a formal Finding of Unavailability of Service Medical Records. However, since the June 2007 VA memorandum and the subsequent September 2007 rating decision, service treatment records were received by VA and associated with the Veteran's claims file. If VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will adjudicate the claim without regard to the prior decision. 38 C.F.R. § 3.156(c)(1) (2017). As relevant service records have been associated with the claims file since the September 2007 rating decision, the Board will adjudicate the matter on appeal on a de novo basis. In July 2012, the RO, inter alia, continued to deny the previously denied claim for service connection for injury to both knees, to include osteoarthritis. The Veteran timely filed a notice of disagreement (NOD) in September 2012 and subsequently filed a substantive appeal, via a VA Form 9 Appeal to the Board of Veterans' Affairs, in October 2014. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video-conference hearing; a transcript of the hearing is of record. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's bilateral knee strain is related to an in-service injury. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral knee strain are met. 38 U.S.C. §§ 1110, 1111, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Given the favorable actions taken below concerning the claim for entitlement to service connection for bilateral knee strain, the Board will not discuss further whether those duties have been accomplished. II. Legal Principles and 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). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran contends that his bilateral knee disability is related to in-service injuries. Service treatment records (STRs) reflect a January 1988 enlistment report of medical examination that noted a normal clinical evaluation for lower extremities. In August 1988, the Veteran reported left knee pain that began two weeks prior while running. Additionally, he reported that he had a history of torn lateral ligaments two years prior to that date. He reported that he was seen by a physician who prescribed crutches. Emergency room notes from June 1992 reflect that the Veteran was diagnosed with a right knee strain. The Veteran reported that he slipped and drove his right knee into steel grading. The examiner assessed direct trauma to the patella interior side. Medical records from the medical department reflect that on November 12, 1992, the Veteran was hit by boxes blown over by an airplane. The examiner noted that the Veteran reported pain in his right leg and plantar area of the right foot. The examiner assessed a sprain from right knee to right ankle. On November 16, 1992, the Veteran was seen for chronic knee pain. The Veteran reported that he injured his knee approximately eight years ago and sustained ligament strain at the time. He reported an aching type pain in the knee with prolonged standing/use. In December 1992, the Veteran reported a history of chronic knee pain. The Veteran reported that he had ligament damage in both knees while playing football eight years ago. At the time of the evaluation, he experienced an aching type of knee pain in both knees with prolonged standing and heavy lifting. In his December 1992 report of medical history, the Veteran reported swollen or painful joints; arthritis, rheumatism, or bursitis; and "trick" or locked knees. On his separation report of medical examination, the examiner noted a normal clinical evaluation for lower extremities. Additionally, the examiner reported that the Veteran's knees were within normal limits with no tenderness. The Veteran's DD 214 reflects that his military occupational specialty (MOS) was an aviation score keeper. Post service, during a May 2012 VA examination, the Veteran reported that in 1992, both of his knees were hit by a 400 pound box. He reported that he was treated with pain medication and two weeks of light duty. He reported that he had grinding and popping pain in both knees. The examiner diagnosed bilateral knee strain and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that the claims file was reviewed and the exit examination was normal. He noted that knee strain was usually self-resolving. In a September 2012 statement, the Veteran reported that he was in the line of duty on several occasions where both of his knees were injured. In his October 2014 substantive appeal, the Veteran reported that he did not agree with the May 2012 VA examination or opinion. Additionally, he reported that in September 1992, he was run over from behind by an aircraft generator causing injury to both of his knees and both of his feet. He reported that his discharge medical examination reflected abnormal knees. During his March 2018 Board hearing, the Veteran testified that in September 1992, he was involved in an accident while working on a flight deck and he got ran over by a vehicle. He reported that as a result of this accident, he received injuries to both of his feet, heels, ankles, and knees. He reported that he was treated and released to light duty. He reported that he was involved in another accident in November 1992 while he was working on the flight deck and a 400 pound box fell off of a pallet and was thrown on to himself and others. He reported that he was knocked 15 feet and landed on his knees and hands. He reported that he was supposed to be sent to an orthopedic specialist but was discharged without seeing the specialist. He reported that he has had pain continuously since service that has worsened over time. He reported that when he entered service, he had previous problems with his knees due to torn ligaments from a football injury in high school. Upon review of the evidence of record, the Board finds that service connection for bilateral knee strain is warranted. As an initial matter, the Board notes that in service, the Veteran reported an accident that occurred prior to service, when he was in high school, which resulted in bilateral torn knee ligaments. As indicated above, unless a disorder is noted at entry into service, a veteran is presumed sound in this regard unless there is clear and unmistakable evidence that shows the disorder preexisted service and was not aggravated thereby. 38 U.S.C. §1111. Here, no disorder relating to the knees were noted on the entrance examination. The Veteran is thus presumed to have been sound as to his knees at the time of entry into service. Moreover, the evidence does not clearly and unmistakably show a lack of aggravation. The presumption of soundness has therefore not been rebutted. The Veteran has a current diagnosis of bilateral knee strain, as reflected by the May 2012 VA examination report. Additionally, STRs reflect an in-service injury, as well as statements from the Veteran. Thus, the dispositive issue is whether there is a nexus between two. The May 2012 VA medical opinion reflects a lack of relationship between the current bilateral knee disability and military service. However, it appears that the examiner did not take into consideration the Veteran's statements; specifically, his account of his injuries and accidents in service. Additionally, the examiner noted that he reviewed the claims file; however, made no mention of the noted in-service injuries and treatment for the Veteran's knees. The examiner based his opinion solely on the fact that STRs reflected a normal clinical evaluation for the Veteran's knees. Thus, the opinion is inadequate. Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). There is also lay evidence suggesting a nexus between the current bilateral knee strain and service; specifically, lay testimony of some continuity of bilateral knee strain symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). During the March 2018 Board hearing, the Veteran reported that his bilateral knee problems have continued and worsened since service. Furthermore, the Board finds the Veteran's statements to be competent, credible, and consistent with the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). See also 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"). The Veteran's DD 214 reflects that he was an aviation score keeper and he testified that he worked on the flight deck where the accidents occurred. Additionally, the Veteran is service-connected for bilateral heel and ankle disabilities as a result of the accident the Veteran testified to. Given the evidence in favor of service connection before the Board, a remand for another examination or opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, there is an inadequate negative medical nexus opinion and competent, credible lay evidence of current bilateral knee strain that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's bilateral knee strain is related to his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral knee strain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for bilateral knee strain is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs