Citation Nr: 19159303 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 16-04 556 DATE: July 31, 2019 ORDER Entitlement to service connection for patellar enthesophytes, right knee (claimed as bilateral knee condition), is granted REMANDED Entitlement to service connection for patellar enthesophytes, left knee (claimed as bilateral knee condition), to include as due to the Veteran’s service-connected right knee is remanded. FINDING OF FACT The Veteran’s right knee condition is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1972 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran filed his fully developed claim for compensation in January 2014. The RO denied the Veteran’s knee condition claims in the abovementioned August 2014 rating decision. The Veteran disagreed with the decision and filed a timely notice of disagreement in September 2014. The Veteran’s knee conditions were denied service connection again in a December 2015 statement of the case. The Veteran filed a timely January 2016 VA Form 9 where he appealed only his knee claims. These issues were certified to the Board in a September 2016 VA Form 8. The Board notes that the Veteran additionally submitted a March 2016 VA Form 9 where he indicated that he wished to appeal all issues listed on his statement of the case, however, this Form 9 was untimely filed. Additionally, only the Veteran’s knee claims have been certified before the Board. As such, the Veteran’s other claims are not before the Board at this time. Of note, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2019. The transcript from the hearing has not yet been associated with the file, as the appeal is being decided under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Service Connection Establishing service connection generally requires evidence of (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 present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Right Knee Condition The Veteran seeks service connection for a right knee condition, which he contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of right knee patellar enthesophytes and arthritis. The central issue that must be resolved is whether the Veteran’s current disability originated in service, or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) do contain complaints of right knee pain from July 1973 and November 1973. The treatment notes indicate that the Veteran had multiple difficulties with his right knee in service including: the Veteran suffered a laceration to his right knee, had painful swelling of his knee after a five-mile run, and he twisted his knee playing football. Additionally, the Veteran’s July 1976 separation examination indicated that the Veteran had episodes of right knee pain and stiffness due to an injury he suffered in boot camp. The Veteran’s VAMC treatment records indicate that he received treatment for his knee arthritis, and that he reported significant pain from his arthritis. The Veteran was afforded a June 2014 VA examination. The Veteran reported that he fell down a flight of stairs while at the barracks in Panama in 1975 or 1976 and that he injured his knees during the fall. The VA examiner, after an in-person examination, found that the Veteran experienced bilateral knee pain and that this pain caused functional loss and additional limitation of the Veteran’s range of motion. The examiner stated that the Veteran’s claimed condition was less likely than not (less than a 50 percent probability) incurred or caused by the Veteran’s in-service injuries. The examiner noted that there was insufficient medical evidence available in the STRs at the time of the examination to associate the claimed conditions to service. The Veteran was afforded a December 2015 VA examination with the same VA examiner. In this examination, the examiner stated that the Veteran’s right knee condition was less likely than not (less than a 50 percent probability) caused by his claimed in service injuries because of the 9-10 year gap in time between the Veteran’s discharge from active duty and his seeking treatment for his right knee condition. In his September 2014 notice of disagreement, the Veteran claimed that while stationed in Panama he had to carry a machine gun, packs of ammo, and spent years moving about the jungle which he believes caused damage to his knees. In his January 2016 VA Form 9, the Veteran stated that he hurt his right knee in service and has felt pain since his injury. Additionally, during his July 2019 Board hearing, the Veteran testified that he fell down stairs while stationed in Panama and hurt his knees there. He continued that he had knee pain after his service in the Marine Corps, but ignored it until finally filing a claim. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The June 2014 and December 2015 VA examiner’s opinion was based on the lack of evidence of treatment in the Veteran’s medical records in the STRs and immediately after separation from service. However, the Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. The medical opinion based on a lack of treatment records regarding the Veteran’s right knee is therefore of limited probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (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”). Additionally, the VA examiner acknowledged that the Veteran is experiencing right knee pain, and that the pain is related to his current right knee condition. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced knee pain following his knee injuries in service, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing knee pain to be at least as probative as the above-noted VA examiner’s findings, as the Veteran is truly the only person capable of such observation. Additionally, the Veteran’s competent reports of right knee pain are supported by the VAMC treatment records where the Veteran sought care for his knee pain. The evidence is thus at least evenly balanced as to whether the Veteran’s current right knee disability is related to the in-service report of, and treatment for, right knee pain. 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 a right knee condition is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Left Knee Condition The Board observes that the Veteran was denied service connection for a left knee condition because there was no record of complaint, injury, treatment, or diagnosis of a left knee condition while the Veteran was in active duty service. The Veteran reported in his VA Form 9 that he believes his left knee condition is caused or aggravated by his right knee condition. The Veteran’s above discussed VA examinations did not address or opine on the etiology of the Veteran’s left knee condition nor did they indicate whether it is etiologically related to his now service connected right knee condition. Under the circumstances, the Board finds that a remand is required. As such, the Veteran should be provided with a VA examination to determine if he has any functional limitation due to his left knee pain, and if so, if that pain is caused by, and/or otherwise etiologically related to service to include as caused by any service connected disabilities. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the diagnosis of pain can be considered a disability for VA purposes, despite a lack of a formal diagnosis). Specifically, the examiner should indicate if the Veteran’s left knee condition is secondary to his now service connected right knee condition. The matter is REMANDED for the following action: Provide the Veteran with a VA examination regarding his left knee condition. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee conditions are etiologically related to his active duty service. The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee conditions are caused or aggravated by a service-connected disability, to specifically include the Veteran’s service connected right knee disability. In so doing, the examiner must specifically consider and discuss the Veteran’s assertions and testimony regarding in-service events and injuries, as well as the lay statements of record regarding his post-service symptoms. The examiner is advised that pain resulting in functional impairment is considered a disability for VA purposes even if that pain and functional impairment is not a diagnosable condition. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.