Citation Nr: 20042372 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 16-60 111 DATE: June 23, 2020 ORDER Service connection for a right knee disability, diagnosed as right knee arthritis with chondromalacia, is granted. Service connection for a left knee disability, diagnosed as left knee arthritis with chondromalacia, is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability had its onset in service. 2. The Veteran’s left knee disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1985 to August 1987 and his decorations include the Parachutist Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in December 2019. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also 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. 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, 492 F.3d at 1376-77. Service connection for a right knee disability Service connection for a left knee disability The Veteran contends that his right knee and left knee disabilities have their onset in service, where his MOS was as an infantryman, and he would “jump out of planes and march with a 75 lb. rucksack.” See May 2013 Statement in Support of Claim. He stated that these activities and training resulted in constant impact on his knees, and trauma he incurred during these events significantly contributed to his current bilateral knee issues. See September 2014 Notice of Disagreement. The Veteran asserted that he was treated in service for both knees, while after discharge he filed a claim for bilateral knee conditions, and he was not given an MRI and his claims were denied since the X-rays showed no abnormalities. See December 2016 Form 9. The Veteran further stated he did not have private insurance and could not receive healthcare until he enrolled into a VAMC in 2010. He also stated that his knees have gotten worse over the years. Id. The Veteran testified before the Board in December 2019, and provided further statements about his military service, the onset of his knee problems and the recurrent issues he has experienced since. See December 2019 Board Hearing Transcript. At the hearing, the Veteran testified that he did not produce many complaints about his knee injuries while in service because the “esprit de corps” of airborne troops and infantrymen compelled them to soldier on rather than go to sick call. The Veteran referenced the hard landings he endured as an airborne troop as well as the heavy loads he had to carry during marches. The Veteran stated that he went to sick call multiple times after complaints of knee issues, self-medicated, and he was told the visual examinations showed nothing and further examinations were not pursued. He sought treatment as soon as he separated from service and made a claim with the VA; he said that the pain in both of his knees became increasingly worse as he got through his twenties and thirties. Id. The Veteran’s service treatment records confirm that the Veteran was seen, diagnosed, evaluated, and treated in February 1986 for left knee pain, and then seen in March 1986 for the same problem. See Service Treatment Records. The Veteran was seen again for left knee pain in May 1986. Records again show Veteran was treated for left knee pain while running in December 1986, and it was noted the issue had been present for ten months. The Veteran was assessed with having patellofemoral pain. The service treatment records further show Veteran was again seen and treated in March 1987 for bilateral knee pain of one year’s duration, and the assessment was that of un-resolving knee pain. Id. The Veteran complained of bilateral knee pain with an onset while on basic training in active duty in the July 1988 VA Examination he was given, which was also less than a year since separation from service. In a subsequent VA examination in November 2010, the Veteran was diagnosed with bilateral knee patellofemoral syndrome with stability, but the Veteran opined that the issue cannot be resolved as to etiology without resorting to mere speculation, despite the record showing in-service treatment of bilateral knee issues. In another VA examination conducted in January 2014, the examiner diagnosed the Veteran’s knees as left knee posterior horn medial meniscal tear, and chondromalacia of the right knee; the Veteran found for a negative nexus opinion and stated the knee conditions were more likely incurred after service and due to multiple risk factors including age, obesity, occupation, sports activities, and previous injuries. The veteran was also afforded a VA Examination for his knees in October 2016, in which the examiner , after review of service treatment records, VA treatment records and prior examinations, opined that parachuting activities from service could not have resulted in chronic knee conditions, and the current bilateral knee conditions were less likely than not incurred in or caused by the complaints of knee pain in service. The examiner rationalized that it was more likely that cumulative effect of wear and tear over so many years would have been more responsible for the degenerative arthritis changes in the knees compared to the modest events in service. The Veteran has supplemented his service connection claims with a medical nexus opinion from a private doctor completed in February 2020. The doctor opined that, after review of the service treatment records, it is more likely than not that the Veteran’s knee disabilities were caused by his military service, as MRI findings from 2012 along with radiographs demonstrate early degenerative changes. See February 2020 Medical Treatment Records. The Veteran’s father also submitted a buddy statement in support of his son’s claim to service connection. See March 2020 Buddy Statement. The Veteran’s father stated that while the Veteran was in service, he complained of knee pain often; after he left service, Veteran lived with his father for some time and again complained of knee issues, a problem he hadn’t had before he joined the service. He stated he heard Veteran continue to complain of knee issues over the years, and they were growing worse while Veteran was in his forties, at which point he told Veteran to reapply to the VA to seek treatment. Id. The Board finds that the Veteran is competent to report regarding the symptoms he experienced during and since service and finds his testimony credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has medical records containing complaints of knee pain in service, VA and private treatment records for the knee pain, a positive nexus opinion from private medical examiners, and supporting buddy lay statement from his father who is also a veteran, corroborating his arguments in support of service connection. In its role as a finder of fact, the Board finds that the Veteran is both competent and credible in reporting having recurrent right knee and left knee problems since service. This is especially so given the corroborating lay evidence and the extensive documentation of right knee and left knee problems during service and since that time. As such, service connection for right knee arthritis with chondromalacia and left knee arthritis with chondromalacia is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). In reaching this determination, the Board acknowledges the negative nexus opinions of record. However, because the Veteran’s right knee and left knee disabilities had their onset in service, service connection is warranted. 38 C.F.R. § 3.303(a, b); Flynn. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.