Citation Nr: 21005033 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-04 656 DATE: January 28, 2021 ORDER Service connection for bilateral knee disability is granted. FINDINGS OF FACT 1. Right knee disability, arthritis due to overuse and meniscus pathology, is attributable to service. 2. Left knee disability, arthritis due to overuse, is attributable to service. CONCLUSION OF LAW Bilateral knee disability, arthritis associated with use and right knee meniscus pathology, was incurred in service. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1970 to September 1971. In a February 2020 letter, the Veteran was informed that the VLJ who presided over his January 2017 hearing was no longer with the Board and was presented with the opportunity to request an optional Board hearing. The Veteran did not respond to the letter and the case has been reassigned to the undersigned. The Board remanded the case in April 2020, in pertinent part, to obtain and addendum opinion regarding the Veteran’s bilateral knee disability. That development has taken place and the issue is now properly before the Board. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air force or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167. The requirement for a current disability is satisfied if the disability is shown at any time subsequent to filing the claim, even if not shown currently. McLain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran has been diagnosed with bilateral tricompartmental osteoarthritis of the knees according to a May 2010 examination and a bucket handle meniscus tear according to an October 2009 examination. Bilateral tricompartmental osteoarthritis is a form of arthritis. Arthritis is a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases to include arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). The weight of the evidence favors the claim for service connection for bilateral arthritis due to overuse and meniscus pathology on the right. The Veteran reported pain in service. Upon examination in March 1970 the pain was attributed to Osgood Schlatter’s disease (OSD). The July 2020 VA examiner noted that OSD is a condition that affects young people during a growth spurt and this was consistent with the pain reported by the Veteran in service, both in March 1970 and July 1971. After these two instances there were no more documented reports of knee pain. On the Veteran’s exit examination, the Veteran denied pain in his knees. The Veteran has made statements that he has had pain ever since he was a child. The Veteran sought treatment for pain in his knees in March 1970 and June 1970; however, he did not seek treatment thereafter. Veterans are still entitled to compensation if they develop a disability “resulting from personal injury suffered in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303 (a). The Veteran is claiming service connection for a bilateral knee disability. For the duration of this appeal, the only current bilateral knee disability is that of record is bilateral knee ostearthritis according to a May 2010 examination and a bucket handle meniscal tear in his right knee according to an October 2009 examination.   The Veteran states that during his military service in Korea he was treated for knee pain and diagnosed with Osgood Schlatter’s disease. The Veteran’s job site included climbing high altitude flights of steps on a constant daily basis. On February 2017 another examination was conducted on Veteran’s knees. The examiner stated, “I believe it is possible that there is a greater than 50% chance that the patient’s current injuries which included b/l knee pain would have been caused by the patient’s military duty overseas in Korea”. The examiner explains that Veteran’s job site included climbing which “put enough stress on his b/l knees to cause some meniscus tears and degenerative changes in b/l knees so there is definitely greater than 50% likelihood that it came from this job assignment in Korea during his military duty. There is evidence of the damage on the MRIs of b/l knees”. This examination connects Veteran’s knee issues with his service. Another VA medical opinion on December 2017 which stated that there was no nexus between the condition and the claimed in-service injury, event or illness. The examiner stated that there was no chronicity of care and therefore that there was no nexus that could be established. We find the 2017 opinion to be unconvincing; continuity of care is not required. Furthermore, what type of treatment would have been provided for knee pain. In view of the fact that Osgood’s is often associated   with use, the earlier VA opinion attributing the post service diagnoses (meniscus and arthritis) is more convincing. Therefore, the evidence supports the claim for service connection for bilateral knee arthritis due to overuse (Code 5010) and meniscus pathology on the right. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.