Citation Nr: 21002411 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-06 840 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral (left and right) knee disability, including arthritis, is granted. FINDING OF FACT The arthritis in the Veteran’s knees is as likely as not the result of his service, as partly evidenced by his credible reports of having experienced chronic knee pain since his service eventually resulting in that diagnosis. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral knee disability, including especially for arthritis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from July 2004 to December 2007, including in Iraq. Among other notable decorations and commendations, he was awarded the Combat Infantry Badge (CIB). In November 2014, the Veteran testified before this Veteran’s Law Judge of the Board in support of this claim and regarding another that he also was then appealing concerning the rating for his right shoulder disability. A transcript of that hearing is of record. In July 2019, the Board denied his claim for a rating higher than 20 percent for his right shoulder disability. However, the Board, instead, remanded these remaining claims concerning his left and right knee disabilities so they could be further developed. Entitlement to service connection for left and right knee disabilities, including owing to arthritis, is granted. The Veteran attributes his bilateral knee disability to his military service. The Veteran testified credibly both during his November 2014 hearing before this Board and in his written pleadings at other times during the pendency of this appeal that he has had painful knees since his service. The record on appeal also reflects that in January 2009, so just a little more than a year after his separation from service, he reported to his VA primary care provider that he had experienced chronic knee pain since his service. In addition, the record on appeal indicates he reported experiencing swollen/stiff/painful joints during his post-deployment health assessment. In short, there is credible indication of relevant symptoms dating back to his time in service.   Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain diseases – including notably arthritis – will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service or if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a presumptive period following separation from service (which is one year for arthritis), or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case at hand, there is no disputing the Veteran has arthritis in his knees. Therefore, the Board turns its attention instead to determining whether there also is the required attribution of his bilateral knee arthritis to his service. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran specifically attributes the arthritis he now has in his knees to the sheer “wear and tear” on them during his infantry training and combat service in Iraq. There is a lesser burden of proof of establishing relevant injury in service if, as here, it is shown to have been sustained in combat. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); see also Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).   Moreover, there is credible evidence of continuity of symptomatology (most notably, chronic knee pain), as contemplated by 38 C.F.R. § 3.303(b), during the several years since the Veteran’s service in the form of his written statements and hearing testimony that his knee pain began during his service and has persisted ever since. His lay testimony concerning this is corroborated by his contemporaneous reports of swollen/stiff/painful joints that are mentioned on his post-deployment health assessment form. As significant is the fact that he began reporting to his VA primary care provider relatively soon after service that he was still experiencing chronic knee pain that had started during his service, and he had continued making this declaration during the several years since. And, while no treatment records or diagnoses exist from during the applicable one year presumptive period following conclusion of his service allowing for initial manifestation of arthritis to be presumed to have been incurred during his service, the Board finds it significant that he continued to experience bilateral knee pain from the time he exited service in December 2007 to January 2009 when he initially sought treatment from VA for knee pain. He is competent to report experiencing chronic knee pain during that period rather immediately following his service until he initially sought treatment for his pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In other words, merely because it was slightly more than a year after his service before he initially sought treatment does not necessarily warrant concluding he did not have knee pain during that intervening year or so following his service, even absent attribution of that pain to arthritis. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (explaining that the presence of disability may be established even absent contemporaneous confirmation by actual treatment records). The Board is mindful of the medical opinions since provided in January 2014 and December 2019 disassociating the Veteran’s knee disability from his service. But those VA examiners did not entirely consider his supporting lay testimony or reconcile it with the other relevant evidence in the file and, at least seemingly, impermissibly equated the absence of treatment with the notion he also had not experienced any relevant symptoms at some earlier points in time and continuously during the several years since. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records (STRs) to provide a negative opinion). The more recent December 2019 VA examiner also is inadequate for failing to fully address a portion of the Veteran’s medical record that has significance. Contrary to those VA medical examiners’ findings, given the Veteran’s credible reports of continuity of symptomology since his service and eventual diagnosis of arthritis, the evidence is at least in relative equipoise regarding whether the symptoms and manifestations (i.e., pain) referable to his knees originated during his service and resulted in that diagnosis. In this circumstance of relative balance of evidence for versus against the claim, this reasonable doubt is resolved in his favor and the claim granted rather than contrarily denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition – which in this instance it is for the reasons and bases discussed. Accordingly, service connection for the bilateral knee condition is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.