Citation Nr: 19161026 Decision Date: 08/06/19 Archive Date: 08/06/19 DOCKET NO. 1614156 DATE: August 6, 2019 ORDER Entitlement to service connection for arthritis of the right knee, claimed as a right knee injury, is granted. Entitlement to service connection for arthritis of the left knee, claimed as a left knee injury, is granted. FINDING OF FACT The Veteran has experienced ongoing bilateral knee pain related to arthritis since his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the right knee have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for arthritis of the left knee have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. INTRODUCTION The Veteran served on active duty from August 1968 to September 1971. In February 2019, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, 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). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a compensable degree within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1111, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Where a chronic disease is shown as such in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If the condition noted during service or within the presumptive period is not shown to be chronic, a showing of continuity of symptomatology after service is required to establish service connection. 38 C.F.R. § 3.303(b). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Walker, 708 F.3d at 1336. In making all determinations, 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). Lay evidence has been found to be competent with regard to diseases that have “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Further, a layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Here, the Veteran seeks service connection for arthritis of the bilateral knee, which he contends originated in service and continues to the present. The Board notes the provision of subsection 3.303(b) for chronic diseases applies in this case, and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. As an initial matter, the medical evidence of record shows the Veteran has a current diagnosis of degenerative arthritis of the bilateral knees and status-post bilateral total knee arthroplasty (TKA). In December 2014, the Veteran underwent a VA examination regarding his claim of service connection for a bilateral knee disability. The examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. Nevertheless, the examiner did not proffer an opinion as to the etiology of the Veteran’ s arthritis of the bilateral knees. The Board observes the service treatment records (STRs) does not reflect complaints, treatment, or a diagnosis of a knee condition. However, the Veteran has consistently stated that he injured his knees in service and experienced knee pain ever since. (See December 2015 Notice of Disagreement (NOD), April 2016 Form 9, and February 2019 hearing transcript.) Specifically, the Veteran alleges he injured his knees during boot camp in September 1968, as he was given a tremendous amount of exercise training and on one of these occasions he was pushed off a truck by one of his fellow service members and landed on his knees, which caused injuries to his knees. The Veteran asserts he reported that incident to his sergeant but it was never documented. Further, he recalled that soldiers were discouraged from seeking any medical attention. In this regard, Veteran stated that he did not pursue any medical attention at the time because he was scared, observing that he entered the service during the Vietnam War at the age of 17. Notwithstanding, he continued to have pain in both knees throughout his service. As for the nexus between his current diagnosis and in-service injuries, the Veteran has competently and credibly stated that he continued to experience bilateral knee pain right after service and into the present. He further stated that his bilateral knee pain has increased throughout the years to a point where he required bilateral total knee replacements. Additionally, at his February 2019 hearing, the Veteran testified that though he did not seek medical treatment shortly after service, he self-treated with aspirin, noting that he did not have medical insurance at the time. In support of the Veteran’s claim, M.R., who has been in a relationship with the Veteran for approximately 22 years and knew him before he enlisted to service, submitted a written statement in December 2015. M.R. stated the Veteran was in good physical health when he enlisted and was noticeably in pain from his knees when returned home after three years in service. Also, she recalled the Veteran mentioned he sustained knee injuries while in service. Further, M.R. noted the Veteran did not like to complain and would continue to work for his family even while he suffered, however, at some point the pain was so severe he could not walk, and it was then that the Veteran sought treatment. The Veteran’s sister and niece also submitted separate written statements in December 2015. The Veteran’s sister recalled that when the Veteran returned home after his discharge from service, he was in a lot of pain due to knee injuries sustained in service. She noted that as a result of his physical pain, the Veteran depended on their mother for constant care. The Veteran’s sister stated that as time went on without relief from the pain and being young, the Veteran opted to find ways to cope with the pain. Additionally, the Veteran’s niece stated that she witnessed the Veteran in pain and a decline in his knee condition. She indicated that through the years, she would observe the Veteran in bed with his knees elevated and complaining of pain. She also stated that her grandmother, the Veteran’s mother, had to care for him throughout the day, bringing him aspirin and rubbing his knees. Upon a review of the record and having resolved all reasonable doubt in favor of the Veteran, the Board finds that the evidence in favor and against the Veteran’s claim is at least in equipoise. The competent and credible lay and medical evidence of record indicate the Veteran’s bilateral knee symptoms continued after service and to the present. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record). In sum, the Board is satisfied that the elements for service connection for the Veteran’s arthritis of the bilateral knees have been met. 38 C.F.R. §§ 3.102, 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). As such, service connection is granted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Martinez, Associate Counsel 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.