Citation Nr: 21000072 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-05 476 DATE: January 4, 2021 ORDER Entitlement to service connection for right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, is granted. Entitlement to service connection for left knee osteoarthritis is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran’s current left knee osteoarthritis began during active service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to September 1970. These matters come before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2017 hearing and a transcript of the hearing is associated with his claims file. In December 2018, the Board granted the Veteran’s application to reopen the claim of service connection for bilateral knee disability and remanded the underlying claim for further development. Lastly, the Board notes that the Veteran’s representative requested a copy of the claims file in June 2019, but that it appears that this request has not been fulfilled. However, as the Board is granting the appeal in full, there is no prejudice to the Veteran in proceeding with adjudication of his claim. The June 2019 request for records from the Veteran’s representative is referred to the agency of original jurisdiction (AOJ) for appropriate action. Entitlement to service connection for right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). The Veteran contends that he has current bilateral knee disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. As an initial matter, the Board notes that the report of the Veteran’s May 1970 entrance examination documents that he had occasionally painful bilateral Osgood Schlatter’s disease at the time of his entrance into service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). There is no evidence of any pre-existing knee disability prior to service other than Osgood Schlatter’s disease and the Veteran’s May 1970 entrance examination did not otherwise identify any other knee abnormalities. Therefore, the Board finds that the evidence is not clear and unmistakable that any knee disability other than Osgood Schlatter’s disease pre-existed service and was not aggravated in service. Thus, with regard to the Veteran’s knees, he is presumed sound at service entrance other than for Osgood Schlatter’s disease. 38 U.S.C. § 1111. In this regard, the law and regulation relating to the presumption of soundness reflects that it applies to specific conditions and not more generally to a part of the anatomy. Medical records, including a March 2014 VA physician assistant outpatient note and a November 2019 medical opinion from a VA nurse practitioner, show the Veteran experiences current right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis. Thus, current bilateral knee disabilities have been demonstrated. Additionally, there is evidence of bilateral knee symptoms in service and evidence of continuous knee symptoms in the years since service. In this regard, service treatment records reflect that the Veteran was treated for bilateral knee pain, tenderness, giving out, and swelling in August 1970 and was diagnosed as having old lateral collateral ligament and anterior cruciate ligament tear of the left knee and bilateral chondromalacia. As a result of his knee problems, a Medical Board recommended that he be discharged from service. Moreover, his post-service medical records and lay statements indicate that he has experienced continuous bilateral knee symptoms in the years since service. The Veteran is competent to report continuous bilateral knee symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that he has provided some information which is inconsistent with a continuity of symptomatology in the years since service. For instance, a November 2012 VA physical medicine rehabilitation note reflects that he reported bilateral knee pain (right greater than left) that began 2 years prior to the November 2012 evaluation. A December 2012 VA physical therapy consultation note indicates that his right knee had been hurting since 1998 and that his left knee had been hurting for the previous 6 to 7 months. A March 2014 VA nurse practitioner note indicates that he had right knee surgery approximately 14 years in the past and that he did not have any right knee problems until a fall 3 weeks prior to the March 2014 evaluation. Also, a March 2015 VA orthopedic surgery consultation note reflects that he had a one year history of right knee pain. Nevertheless, these reports are themselves inaccurate because there is evidence of knee problems following service as early as November 1970, when the Veteran was seen for mild residuals of Osgood Schlatter’s disease. Also, in March 1971 he experienced pain and giving out of the left knee while playing basketball. As there is no other evidence that explicitly contradicts the Veteran’s reports and his reports are otherwise generally consistent with the evidence of record and the circumstances of his service, the Board concludes that his reports of continuous bilateral knee symptoms in the years since service are credible. The nurse practitioner who conducted a November 2019 VA knee examination opined, in pertinent part, that the Veteran’s bilateral knee disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. She reasoned that prior to service, the Veteran was diagnosed with Osgood Schlatter’s disease and reported occasional exacerbations of this condition. Also, he incurred a left knee injury while playing football in high school. During basic training, he experienced an exacerbation of the prior left knee injury which was confirmed in radiographic imaging reports. Following his discharge from service, the Veteran had a report of one knee injury in 1971, after which his records are silent for injury until 1994, approximately 23 years later. The Veteran’s current osteoarthritis was unrelated to his prior Osgood Schlatter’s disease and the Osgood Schlatter’s disease was resolved. Overall, his bilateral knee disability was not likely (“less likely than not”) incurred in or caused by occurrences during his military training. His osteoarthritis was most closely attributable to advancing age, obesity, and normal wear and tear. Moreover, the examiner explained that Osgood Schlatter’s disease is characterized by pain and swelling at the tibial tubercle (the point of insertion of the patellar tendon). This is a self-limiting condition of childhood and adolescence and resolves in young adulthood when the growth plates have healed. The Veteran’s current knee disability was complex and a combination of several unrelated conditions. For instance, he had evidence of chronic Osgood Schlatter’s disease which was resolved. Also, tricompartment degenerative changes were noted in both knees. This was consistent with osteoarthritis and was not an extension of his Osgood Schlatter’s disease. This disability was best attributed to advancing age, obesity, and normal wear and tear. Also, there was evidence of prior ACL reconstruction in the right knee. This was related to surgeries conducted in 1994 and 1995. This was due to an injury sustained during a fall in the summer of 1994 and was unrelated to Osgood Schlatter’s disease or the Veteran’s military service. The November 2019 opinion is of limited probative value because it is partially based on the absence of clinical evidence of treatment for knee problems for many years following service, and it does not take into account the Veteran’s competent and credible reports of continuous bilateral knee symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced bilateral knee symptoms in service and that there have been continuous bilateral knee symptoms in the years since service. He also experiences current right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis. There is no adequate medical opinion that is contrary to a conclusion that the current knee disabilities had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. 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 right knee osteoarthritis, medial and lateral meniscal tears, and residuals of anterior cruciate ligament tear, and left knee osteoarthritis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 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”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.