Citation Nr: 21071361 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-46 015A +DATE: November 30, 2021 ORDER Service connection for residuals of a meniscus tear of the left knee with arthritis is granted. Service connection for residuals of a meniscus tear of the right knee with arthritis is granted. REMANDED An effective date earlier than February 1, 2017 for the establishment of service connection for left foot hammertoes is remanded. An effective date earlier than February 1, 2017 for the establishment of service connection for right foot hammertoes is remanded. An effective date earlier than March 1, 2008 for the establishment of service connection for left foot MTP joint degenerative arthritis with associated bunion is remanded. An initial compensable rating for left foot hammertoes is remanded. An initial compensable rating for right foot hammertoes is remanded. An initial compensable rating for left foot MTP joint degenerative arthritis with associated bunion is remanded. Service connection for chest pain is remanded. Service connection for low back pain is remanded. FINDINGS OF FACT 1. The Veteran has a left knee disability that was incurred during active service. 2. The Veteran has a right knee disability that was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for entitlement to service connection for a right knee condition, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1987 to February 2008, including service in Bosnia. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. 1. Service connection for left knee connection. 2. Service connection for right knee condition. The Veteran seeks service connection for residuals of a meniscus tear of the left and knees with arthritis because that she states the conditions are due to injury incurred during active-duty service. See October 2017 Decision Review Officer Hearing Transcript. See also September 2021 Board Hearing Transcript. The Board finds that service connection for residuals of a meniscus tear of the left and knees with arthritis is warranted. As stated above, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In this case, the evidence shows that the Veteran has had bilateral knee pain with decreased range of motion throughout the appeal period. See June 2017 Knee and Lower Leg Disability Benefits Questionnaire. See also April 2012 Private Treatment Records. The Veteran's left knee condition required arthroscopic surgery in July 2012. January 2013 Private treatment records document a diagnosis of chondromalacia of the left knee. Additionally, May 2014 VA examination provides a diagnosis of right knee strain and left knee s/p score for meniscal tear. Therefore, the Board determines that the first element of service connection is satisfied. The in-service incurrence requirement is also satisfied as the Veteran's September 2005 service treatment records show treatment for left knee pain that the Veteran experienced over the prior year. April 2006 service treatment records show treatment for knee pain and knee giving out. A July 2006 service treatment record documents examination of the Veteran's left knee which revealed tenderness on palpation, and an apprehension test that was positive for pain with patella compression and mild effusion prepatellar. Further, a November 2007 General Medical Examination conductive while the Veteran was on active-duty service documented that the Veteran's right knee range of motion was impacted due to pain, weakness, fatigue, or incoordination following repetitive use or flare-ups. The Veteran discussed anterior knee pain, especially with prolonged activities, which lasts 2 to 4 days and is relieved by rest and activity modification. Additionally, the Veteran presented sworn testimony in September 2021, and discussed the wear and tear that she experienced an all-Army basketball official and player beginning in 1988. The Veteran explained that her knee gave out while she officiated games in service. As to a nexus between the Veteran's current conditions and her in-service injuries, the Veteran has competently and credibly reported that her bilateral knee pain began during active-duty service and has been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Veteran is competent to report the onset and continuation of symptoms and the Board finds her report credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). The July 2014 VA examiner opined that the Veteran's left and right knee conditions are less likely than not incurred in or caused by in-service injury, stating that there was no pathology to grant a left or right leg conditions. The examiner also states later in the examination that the Veteran does not have a diagnosis of a right leg condition. The opinion was internally inconsistent in that it documents the Veteran's left knee s/p meniscal tear and right knee strain, as well as episodes of locking, pain, and effusion. Additionally, the Veteran reported pain that interfered with running and sitting. The examination is also not probative in that the Veteran reported flare-ups, but the examiner does not report the range of motion findings for the Veteran's knees during flare-ups to assess functional mobility, nor did the examiner address the Veteran's lay assertions of experiencing painful motion which impacts mobility. In the June 2017 Knee and Lower Leg Disability Benefits Questionnaire, an examiner opined that there is more likely than not a nexus between the Veteran's left and right chronic knee pathology and her active service. The examiner documented chronic progressive development of bilateral significant knee pathology. The examiner noted the Veteran's decreased ability to perform sitting, walking, standing, bending, and balancing due to her bilateral knee disability. Additionally, moderate tenderness anterior, medial and lateral was found in the right and left knee. Functional loss was identified as pain on movement, instability of station, disturbance of locomotion, excess fatigability, less movement than normal, and interference with standing. A subsequent November 2017 VA examination of the left and right knees opined that the Veteran's condition was less likely than not incurred in or caused by in-service injury, rationalizing that there was no history of injury in service. While the examiner acknowledges the Veteran's complaint of knee pain while in service, as well as complaint of her knee giving out, the examiner did not provide adequate rationale for why the Veteran's current disabilities are not related to the Veteran's documented in-service left and right pain. Significantly, the examiner also relied, at least partially, on the absence of a claim for entitlement to service connection for knee injury in the Veteran's July 2007 application for compensation but failed to note the Veteran's documented right knee pain in the November 2007 General Medical Examination. The examiner also stated that, while the undersurface tears are in both knees, the Veteran only complained of the left knee in service. However, the Board notes that the April 2006 examination did not identify whether the complaint addressed one or both knees. Thus, the examination is not probative as to nexus. The evidence is at least in equipoise that the Veteran has left and right knee disabilities that the onset of the Veteran's bilateral knee condition was in service, and thus service connection is warranted. Resolving reasonable doubt in the Veteran's favor, service connection for residuals of a meniscus tear of the left and knees with arthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 3.303(a). REASONS FOR REMAND 3. An effective date earlier than February 1, 2017 for left foot hammertoes is remanded. 4. An effective date earlier than February 1, 2017 for right foot hammertoes is remanded. 5. An earlier effective date earlier than March 1, 2008 for left foot MTP joint degenerative arthritis with associated bunion is remanded. 6. An initial compensable rating for left foot hammertoes is remanded. 7. An initial compensable rating for right foot hammertoes is remanded. 8. An initial compensable rating for left foot MTP joint degenerative arthritis with associated bunion is remanded. 9. Service connection for chest pain is remanded. 10. Service connection for low back pain is remanded. In a July 2017 rating decision, the RO granted service connection for right foot hammertoe and assigned an initial evaluation of 0 percent, effective February 1, 2017, granted service connection for left foot hammertoes and assigned an initial evaluation of 0 percent, effective February 1, 2017, denied entitlement to an increased rating for left foot MTP joint bunions, and denied service connection claims for low back pain and chest pain. The Veteran submitted a Notice of Disagreement in August 2017 as to earlier effective dates for left and right foot hammertoes and left foot MTP joint degenerative arthritis with associated bunion, increased ratings for left and right foot hammertoes and left foot MTP joint degenerative arthritis with associated bunion, and for entitlement to service connection for low back pain and chest pain. To date, a statement of the case (SOC) has not been issued as it relates to these issues. The Board is required to remand the claims for issuance of a SOC. Manlicon v. West, 12 Vet. App. 238. The matters are REMANDED for the following action: Issue an SOC on the issues of entitlement to initial compensable ratings for left and right foot hammertoes and an effective date prior to February 1, 2017 for both issues; and an initial compensable rating and earlier effective date for left foot MTP joint degenerative arthritis with associated bunion, and for entitlement to service connection for low back pain and chest pain. The Veteran should be advised of the time limit for perfecting an appeal and afforded such period of time to do so. If she timely perfects an appeal of these matters, it should be returned to the Board. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.