Citation Nr: 21067551 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 11-10 662 DATE: November 4, 2021 ORDER Entitlement to service connection for left knee disability is granted. FINDING OF FACT The Veteran did sustain a knee injury while in service and does have a current diagnosis of a left knee disability supported by x-ray evidence of degenerative changes of the left knee. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee injury have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army during the Vietnam Era from November 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO). This matter was previously remanded in June 2014 and October 2016. The Board denied the Veteran's claim for service connection of his left knee disability in August 2017. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Remand was granted, and this matter was returned to the Board. The Board remanded this claim again in February 2019 to obtain records from Fort Leonard Wood. The Veteran was afforded a Board hearing before the undersigned Veterans' Law Judge (VLJ) in August 2021. This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Left knee disability. The Veteran contends that his left knee disability should be service connected. The Veteran's exit exam upon discharge in June 1974 indicates that the Veteran did report having a "trick" or locked knee at the time of discharge. The evidence of record indicates that the Veteran's military occupation was as a cook. The Veteran has testified and records support that the Veteran did not have any issues with his left knee prior to service. In December 2018, the Veteran submitted an affidavit statement indicating that he injured his left knee while unloading boxes full of canned goods while stationed in Fort Leonard in Wood, Missouri. The Veteran's affidavit also indicated that he had fluid drawn from his swollen left knee several times while in service and after service. He testified that his left knee continued to hurt since his injury in service and that it has worsened through the years. The Veteran testified that since the time of his injury in service he has had pain in his left knee, and it has progressively worsened. In an August 2021 hearing before the undersigned VLJ, the Veteran testified that he injured his left knee when he was unloading boxes. The Veteran testified that he was treated after his injury, that his left knee was bandaged and that he was given 30 days off post injury and was told to stay off of his knee. The Veteran also testified that during service he returned to the doctor for additional treatment to have fluid removed from his knee. The Veteran testified during the hearing that he has had pain in his left knee in and since service. The Veteran has testified that he did not have any pain in his left knee prior to service. The Veteran received treatment after the military service but indicated that prior to that he self-medicated with Tylenol/Advil. The Veteran also testified that post-service he worked for 10 years as a food server and 24 years at a seafood restaurant. In a July 2014 VA examination the VA examiner determined that the Veteran's left knee condition was less likely than not incurred in or caused by the claimed in-service injury. The basis of the examiner's opinion was that the Veteran's report on his discharge examination was that he had a trick or locked knee and that there was no further evidence to note an abnormality in the knee joint. The Veteran was afforded a new VA examination in December 2016. The VA examination established that the Veteran does have a current diagnosis of left knee osteoarthritis. The Veteran discussed the Veteran's statements of pain. The examiner opined that the Veteran's condition as less likely than not incurred in or caused by the claimed in-service injury. The examiner opined that the reported history of treatment was from the 1990s 16 years after discharge, and therefore unrelated to the in-service injury. The Board acknowledges the negative nexus opinions provided by the VA examiners but finds that it is outweighed by the Veteran's lay assertions. The Board finds the Veteran's testimony of his knee pain in and since service to be competent, credible, and highly probative. The Veteran has provided consistent testimony regarding the nature of his in-service injury. The Board also finds that the Veteran's testimony that he did seek out treatment while in service to be competent, credible, and probative. The Board finds that the Veteran's left knee injury was noted on his discharge examination. The VA attempted to obtain the Veteran's in-service treatment records; however, the records were not available. The Board finds that the Veteran is competent to report the nature of his injury, and that his report of pain in and since service are highly probative. The Board finds that the Veteran does have a current diagnosis of a left knee disability. The Board has reviewed the Veteran's x-ray records and finds that there is medical evidence that adequately diagnosed the Veteran's current disability. The Veteran is competent to report his injury, and he has consistently testified that he has had pain in his left knee in and since service. Lay testimony is competent to establish a nexus between the Veteran's in-service injury and current diagnosis. Based on the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to service-connection of his left knee disability. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.