Citation Nr: 20034547 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-08 387 DATE: May 18, 2020 ISSUE Entitlement to service connection for a left knee disability. ORDER Entitlement to service connection for a left knee disability is granted, subject to laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in his favor, the Board finds that the evidence is in relative equipoise as to whether the Veteran's left knee disability is related to service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1975 to November 1979. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. The Veteran testified at a Travel Board hearing in August 2016. However, no transcript of that hearing has been associated with the claims file as the Veteran’s testimony was found to be inaudible. The Veteran was offered a new hearing, and subsequently testified before the undersigned Veterans Law Judge (VLJ) at an April 2017 Travel Board hearing. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in November 2017. In that November 2017 decision, the Board, in pertinent part, remanded the Veteran’s claim of entitlement to service connection for a bilateral knee disability for the purpose of obtaining a VA examination to determine the nature and etiology of the Veteran’s bilateral knee disabilities. That examination did take place. Hence, the Board finds that that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that in a subsequent August 2018 rating decision, the Veteran was granted service connection for his right knee disability. Service Connection Entitlement to service connection for a left knee disability. The Veteran contends that he is entitled to service connection for a left knee disability. The Veteran contends that his left knee disability is related to the physical rigors associated with his military service in the Marines: climbing mountains, bending, physical training requirements and exercising. See April 2017 Board Hearing testimony, pg. 9-10. See also DD-214 (MOS: Vehicle Operations). In order to obtain service connection under 38 U.S.C. §§ 1110 , 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection is available for chronic diseases which manifest to a degree of 10 percent or more within 1 year of the date of separation. 38 U.S.C. § 1112 (a)(1). Arthritis or degenerative disc disease is listed as a chronic disease. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Turning to the evidence of record in the evaluation of this Veteran’s claim. There is evidence of a current disability, namely moderate degenerative osteoarthritis of the left knee. See February 2018 VA Knee and Leg Conditions examination, pg. 1. Turning to the second element of service connection: an inservice injury, event or illness. Shedden, Id. As referenced above, the Veteran testified in his April 2017 Board Hearing that his knee disability is related to rigors of his military service in the Marines. The Veteran testified that he sought treatment on “several occasions” for his knees during service, whereby he was provided with pain medications and wrapping. See Board Hearing transcript, pgs. 9-10. The Veteran also testified that he believed he sought treatment and continued to seek treatment for his knees once leaving the military. See Board Hearing transcript, pg. 11. The Board observes that the Veteran’s service treatment records are silent regarding any complaints, injury or treatment specifically for a left knee condition. There are numerous complaints of injury and pain to the Veteran’s right knee during service. The Veteran’s September 1979 separation examination reported that his lower extremities were normal on clinical evaluation. See September 1979 Separation examination. To this point, the Veteran’s representative has argued that there is no specific tab for knees on the September 1979 separation examination. See Board hearing transcript, pg. 7 Additionally, with regards to the Veteran September 1979 Separation examination, the Board observes that Veteran testified at his Hearing that he minimized his knee condition at separation. See Board Hearing transcript, pgs. 17-19. The Board also observes that the Veteran testified that after separation from service, he worked in construction, performing general labor, which he conceded can be hard on the knees. See Board Hearing transcript, pg. 20. Affording the Veteran all reasonable doubt on a material issue, the Board concedes that the Veteran sustained an inservice injury or event associated with the rigors of his military service in the Marines. The Board arrives at this conclusion based on his credible Board Hearing testimony, that he sought treatment in service for his knees and minimized the condition of his knees at his September 1979 separation physical examination. To this point, the Board observes that even though the Veteran had documented in-service complaints about his right knee during service, there also was no report of a right knee condition on the Veteran’s September 1979 Separation Examination. On clinical evaluation, the Veteran’s right knee and left knee were found to be normal. See September 1979 Separation Examination. Hence, the Board finds that the second element of service connection has been met in this case. See Shedden, Id. Pursuant to the Board’s remand directives, the Veteran was afforded a February 2018 VA examination to determine the nature and etiology of his bilateral knee condition. As referenced earlier, the Veteran was diagnosed with moderate degenerative joint disease (DJD) See February 2018 VA Knee and Lower Leg Examination. The examiner provided a positive nexus opinion with regards to the Veteran’s right knee based on in-service treatment for his knee. With regards to the left knee, the examiner provided a negative nexus opinion. The examiner reasoned that there was no documentation in the STR for any left knee abnormality. Examination today revealed bilateral knee DJD. This Veteran's current right knee condition is a continuation and worsening of his right knee documentation while in service. It is well known in the Medical community that chondromalacia leads to DJD as found on this Veteran. The examiner concluded that there is no cause or relationship with this Veteran's left knee DJD and his active duty service. See February 2018 VA Knee and Lower Leg Examination, pg. 1 The Veteran was afforded a January 2020 Addendum Medical Opinion by the same examiner with regards to the Veteran’s left knee disability, in compliance with the Board’s remand directives to a) address the Veteran’s lay statements regarding minimizing his pain in service, and continued pain after service and b) the instruction that it was not sufficient to base an opinion on a mere lack of documentation of complaints in-service and post-service treatment records. The January 2020 examiner provided a positive nexus opinion with regards to the Veteran’s left knee disability. The January 2020 examiner opined that it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee condition was incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that it was noted that is not sufficient to base a medical opinion on a mere lack of documentation of complaints in the service or post-service treatment records. The examiner noted the Veteran's lay statements as credible regarding minimizing the pain he had while in service as well as the continued pain he experienced after service. Additionally, the examiner reasoned that the Veteran’s complaints are similar in both knees. The examiner noted the Veteran’s medical history and report of continued symptomology. The examiner credited the Veteran assertion that he started having bilateral knee pain in 1976 and that this pain has continued since. The examiner noted that the Veteran was seen for his knees while in service. He states he now has worsened pain, stiffness and decreased range of motion. He states he has intermittent edema. He states he takes meloxicam and has a bilateral knee brace bilateral knee brace. With regards to his bilateral knee condition, the examiner noted that the Veteran’s knee condition was the same in both knees. The examiner illustrated this finding by reporting the Veteran’s right knee and left knee flexion and extension, finding osteoarthritis in both knees, with mild to moderate osteoarthritis greater in the right knee as compared to the left knee. No acute findings. See January 2020 Addendum Medical Opinion (M.N.A., M.D.) The Board finds this medical opinion probative and its rationale adequate for the following reasons: First, it is was based on a review of the Veteran’s medical history, taken together with his lay assertions of minimizing his pain in-service and continued symptomology. Second, the medical opinion was based on the reasoning, upon examination, that the Veteran’s left knee condition was the same as his service-connected right knee condition with regards to flexion and extension, with a finding of osteoarthritis in both. Third, the Board finds that this Addendum Medical Opinion is competent medical evidence of a positive nexus between the Veteran’s claimed in-service injury and his current disability. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The Board has weighed the entire evidence of record, including the Veteran’s credible April 2017 Board Hearing testimony, taken together with the positive Addendum Medical Opinion of record, balanced against the absence of in service complaints, treatment or pain during service of a left knee condition, taken together with the Veteran’s post-service occupation in construction, and finds that the evidence for and against the Veteran’s claim of entitlement to service connection for a left knee disability are in relative equipoise. The Board should not and will not at this juncture develop the case further by attempting to obtain medical evidence for the sole purpose of refuting the positive evidence of record. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Based on the foregoing, the Board finds that the evidence for and against the claim of entitlement to service connection for a left knee disability are in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a left knee disability is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.