Citation Nr: 21004922 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-00 456 DATE: January 28, 2021 ORDER Service connection for right knee degenerative joint disease is granted. Service connection for a stomach disorder is denied. FINDINGS OF FACT 1. The Veteran has a present diagnosis of right knee degenerative joint disease. 2. The Veteran injured the right knee during service. 3. Symptoms of arthritis (degenerative joint disease) have been continuous since service separation. 4. There is no current diagnosed stomach disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for right knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from July 1979 to November 1986. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for a right knee disorder and a stomach disorder. The case has been before the Board of Veterans’ Appeals (Board) previously. In March 2020, the Board remanded the case to enable the RO to procure Social Security Administration (SSA) records. Upon review of the record, the Board finds that there has been substantial compliance with the terms of the remand, as the SSA records have been obtained, and that the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a November 2019 Board hearing. The transcript of the hearing has been associated with the claims file. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and to assist have been met. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Chronic Disease Presumptive Service Connection Degenerative joint disease is a form of arthritis, which is a chronic disease that is listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For these reasons, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. 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. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Service Connection for Right Knee Degenerative Joint Disease The Veteran contends that he injured his right knee during a basketball game during service, and that symptoms of the injury have persisted since then. See November 2019 Hearing Transcript. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to the necessary elements for service connection. First, the evidence is at least in equipoise as to the present disability diagnosis of degenerative joint disease, which is a form of arthritis. The VA treatment records state that the Veteran has degenerate joint disease in both knees. See, e.g., June 2020 Orthopedic Surgery Consultation; January 2017 Orthopedic Surgery Consultation. However, an August 2016 letter provided the x-ray result of the right knee, which was deemed unremarkable. The Board resolves reasonable doubt as to this element to find a current disability of right knee degenerative joint disease (arthritis). The evidence also is at least in equipoise as to the presence of continuous post-service symptomatology of right knee arthritis. The Veteran explained at the Board hearing that he had some problems with it prior to the basketball game, but he injured his right knee playing basketball in 1986 and that there had been symptoms ever since. There are three service treatment records in January 1986 related to a right knee injury, although the service separation examination does not mention right knee problems. The Veteran stated that there were more times where a sick call visit was probably merited, but he did not want to keep going to sick call and would push through the pain. The Veteran testified that he experienced symptoms like weakness, popping, giving out while doing simple movements like bending or walking in the present day and continuously since service. He stated that the pressure would build up and then result in him doing a “popping” motion to try to fix it. He stated that he had to do the same thing in service. In short, the Veteran reported that he experienced pain and related symptoms of arthritis from service continuously to the present, which supports a grant of presumptive service connection under 38 C.F.R. § 3.303(b) based on continuity of symptoms of arthritis since service. Resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of right knee arthritis were continuous since service to meet the criteria for presumptive service connection. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board acknowledges that there is a negative nexus opinion with respect to the right knee. As the Board is granting on the basis of continuity of symptomatology, other theories of entitlement, to include the direct opinion, are rendered moot. 2. Service Connection for a Stomach Disorder The Veteran contends that he has had stomach symptoms during service and since service. He generally reports some infrequent symptoms that occurred years apart. After a review of all the evidence, lay and medical, the Board finds that there is not a presently diagnosed disorder and accordingly service connection cannot be granted. The weight of the lay and medical evidence shows no current stomach disability. In May 2015, the Veteran participated in a VA examination. During the VA examination, the examiner concluded that the only pertinent “diagnosis” was “episode of acute gastritis treated and resolved while in service.” In the VA opinion, the examiner opined that the Veteran was treated and resolved for acute gastritis while in service and that there is no evidence of gastritis currently as per the examination. The Veteran has been seen for chronic diarrhea a few times (e.g., January 2015 and September 2020) and had a treatment note for gastroenteritis (stomach flu) twice (March 2020 and November 2019). The Veteran also testified at the hearing that he had stomach-related symptoms recently that prompted a hospital visit. Such general descriptions of symptoms treated years apart, and shown to be related to the acute cause at the time, do not present a disability picture of a disease or symptoms that are chronic in nature. Because there is no present stomach disorder at any time during or immediately prior to this claim, service connection any theory of entitlement must be denied. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Accordingly, the appeal for service connection for a stomach disorder must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.