Citation Nr: 21062850 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-33 378 DATE: October 12, 2021 ORDER Entitlement to service connection for a left knee disorder, diagnosed as osteoarthritis of the left knee, is granted. FINDING OF FACT The Veteran's left knee disorder, diagnosed as osteoarthritis of the left knee, had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disorder, diagnosed as osteoarthritis of the left knee, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1981 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran recently provided sworn testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. In an April 2018 rating decision, the RO granted the Veteran's claim of entitlement to service connection for genital warts and assigned an evaluation of 0 percent effective October 26, 2016. The issue of service connection for this disability is no longer in appeal status. 1. Entitlement to service connection for a left knee disorder Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Further, if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.309. Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. The claimant may establish service connection by continuity of symptomatology. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Analysis Service treatment records dated in March 1985 indicate that the Veteran was assessed with left knee chondromalacia patella. The records note a follow-up visit for knee pain, and tenderness and crepitus immediately lateral to the patella were also noted. The Veteran has a current diagnosis of osteoarthritis and a documented injury during service. Therefore, the first two elements required to establish service connection have been met. The remaining issue to be resolved is whether the Veteran's current diagnosis is related to his active service. The Veteran was afforded a VA examination for his knee condition in December 2016. The Veteran was diagnosed with mild tricompartmental degenerative changes on left knee. The Veteran stated that he developed left knee pain from playing basketball in active service. He was treated for left knee pain with an ace bandage and did not seek further treatment because he was leaving active service. He stated that he has had constant pain on his left knee. Range of motion testing was noted as normal. Pain was noted on flexion and extension examination but the examiner stated pain does not result in or cause functional loss. The Veteran reported that left knee pain limits prolonged walking and occasional use of a cane. The Veteran reported that he was a truck driver and became disabled from that job. The examiner noted that there is no evidence of pain on passive range of motion testing, no evidence of pain when the joint is used in nonweight-bearing, and no abnormalities on the opposing joints. X-rays at the time of the examination indicated degenerative or traumatic arthritis. Findings were noted as no acute or healing fracture or other focal osseous abnormality identified; mild tricompartmental degenerative changes with small marginal osteophyte formation; and small knee joint effusion. The impression was mild tricompartmental degenerative changes and small knee joint effusion. The examiner opined that the Veteran's mild left knee tricompartmental degenerative changes are less likely as not proximately due to military service. The rationale was that the record and the Veteran are silent for any follow-up treatment of left knee pain during service, within one year post-discharge, and at the current time. The condition was noted on X-ray dated 12/6/2016, 21 years after service. In addition, the examiner stated that there is no medical literature or medical consensus that would provide scientific evidence to support that left knee chondromalacia patella caused arthritis of the joint, and that this condition is self-limiting. The Veteran provided sworn testimony at a hearing in January 2021. He testified that he injured his left knee just prior to separation from service. He stated that he injured his knee twice and that he slipped while playing basketball. Then he stated that he thought he injured his knee coming down steps, adding "I'm not very sure if it was the basketball or me coming down the steps." He stated he was not sure exactly what happened and that there were two injuries. He described the injury as swollen and painful. He indicated that they did not do an MRI. He stated that he also experienced an in-service head injury and entered a medical evaluation board for his head injury. (The Veteran is service-connected for a traumatic brain injury.) He indicated that he was on medical hold for months before he was discharged. The Veteran stated that he was approved to get off medical hold and was discharged 90 days early. After service, he stated that he was going through "a mental thing" with his concussion and just lived with the knee disorder. He stated that he was "confused and hurt." He continued to wrap it. He stated that he did not even receive post-service treatment for his concussion until a friend took him to the VA four years later. The Veteran stated that "I've always had a gimp walk. I just wrapped it and it was just, you know, I always had pain in it." He stated that he just dealt with it as he's dealing with it today. He stated that he is still in pain and he is used to it now." Over the years, he compensated for it as best as he could. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Id. The Board finds that the December 2016 opinions are inadequate as the rationales failed to accurately address the Veteran's service treatment records or the Veteran's lay statements. Further, the examiner provided a general statement referencing medical literature and medical consensus that is not identified nor does the examiner relate any findings to the Veteran's claim. The medical literature and consensus referenced by the examiner were not accompanied by any corresponding clinical evidence specific to the Veteran nor did it identify the medical literature or basis of the medical consensus. Treatise evidence must "not simply provide speculative generic statements not relevant to the [Veteran]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). In addition, while the VA examiner stated that there was no evidence of ongoing treatment during service, there were documented instances in service treatment records and the Veteran was discharged shortly after his injury. The Board finds that the opinions were unsupported by sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board places little probative weight on these opinions. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to a diagnosed current disability, or as a substitute for a nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic disorders, like arthritis, when coupled with credible statements of continuity of symptoms, can substitute for competent medical nexus evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service." 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). In Caluzza v. Brown, 7 Vet. App. 508 (1995), the United States Court of Appeals for Veterans Claims held that in discussing the credibility of lay evidence, "the truthfulness of evidence is presumed and that credible testimony is defined as that which is plausible or capable of being believed." Here, the Veteran has competently described his symptoms in his statements and hearing testimony both during service, which is supported by service treatment records, and thereafter continuing to the present day The Board notes that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488 (1997). The Board finds that the Veteran's lay statements provide the requisite showing of the onset of a left knee arthritis during service and a continuity of symptomatology thereafter that acts as a substitute for a nexus opinion. The Board notes that the VA examiner's opinion did not connect the Veteran's in-service injuries and his diagnosed arthritis of the left ankle. However, current VA regulations allow for such connection. As arthritis is a chronic disease, service connection may be granted under a theory of chronicity and continuity of symptomatology. 38 C.F.R. §§ 3.303(a)(b), 3.309(a). The Veteran's left knee arthritis is a chronic disorder and the Veteran's has asserted a continuity of symptoms since his in-service injury. The Veteran is considered competent to report that he injured his left knee during service, which is documented in service treatment records, and also competent to report that he continued to experience symptoms during service and after he was discharged. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran's statements of continuity of symptomatology are credible and entitled to high probative value. The Board further notes that no intercurrent causes for the Veteran's left knee disorder are noted in the record. Nor did the VA examiner offer any alternative cause. Finally, the Board finds the Veteran's assertion that he did not seek treatment for his left knee disorder due to his in-service traumatic brain injury to be credible. Accordingly, the Board finds the evidence is at least in equipoise as to the evidence of a nexus between the Veteran's left knee disorder, diagnosed as osteoarthritis of the left knee, and the injury incurred during service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection is warranted for the Veteran's left knee disorder, diagnosed as osteoarthritis of the left knee. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.