Citation Nr: 21073240 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-21 003 DATE: December 7, 2021 ORDER 1. The previously denied claim of service connection for a left knee disability is to be reconsidered. 2. The previously denied claim of service connection for a left right knee disability is to be reconsidered. 3. Service connection for left knee patellofemoral dysfunction with degenerative arthritis is granted. 4. Service connection for right knee degenerative arthritis is granted. FINDINGS OF FACT 1. The Veteran's left knee disability had its onset during active duty service. 2. The Veteran's right knee disability had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for patellofemoral dysfunction with degenerative arthritis of the left knee have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for degenerative arthritis of the right knee have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from April 1998 to July 1998 and on active duty from October 2003 to July 2004 and from March 2010 to April 2011. The Veteran had additional service in the Puerto Rico Army National Guard (ARNG). The case is on appeal from a February 2016 rating decision. In an April 2017 VA Form 9, the Veteran requested a video teleconference hearing before a Veterans' Law Judge. In August 2021, a hearing was scheduled for October 27, 2021. Subsequently, the Veteran voluntarily withdrew his hearing request. See October 26, 2021 VA Form 27-0820. Thus, the Board finds that the Veteran's request for a hearing is withdrawn. See 38 C.F.R. § 20.704(e). The February 2016 rating decision also denied service connection for anxiety disorder. This claim was also appealed to the Board in an April 2017 VA Form 9. Thereafter, in an October 2017 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). While a Veteran is not precluded from establishing service connection for multiple psychiatric conditions, here, the Veteran has consistently contended that his symptoms have a common etiology, his combat experiences during service. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). In addition, the claimed psychiatric symptoms are compensated by the rating assigned for the Veteran's PTSD. See 38 C.F.R. § 4.130. Furthermore, in a December 2018 statement, the Veteran's representative acknowledged that the PTSD rating decision was inclusive of the Veteran's anxiety symptoms. Therefore, in this case, the anxiety claim has been granted in full and it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). I. Reconsidering Service Connection The Veteran initially filed a claim of service connection for bilateral knee disabilities in April 2011. The claims were denied in March 2012. The Veteran was notified of the decision by a letter later that month which was mailed to the then current mailing address of record. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the March 2012 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In October 2015, the Veteran filed a claim to reopen the previously denied knee claims. The RO denied reopening the claims in a February 2016 rating decision. Thereafter, in July 2016, the Veteran submitted additional service personnel records (SPRs) and service treatment records (STRs). Some of these records are relevant to the knee claims. When this occurs, VA will reconsider the claim notwithstanding the standard requirement for receiving new and material evidence under 38 C.F.R. § 3.156(a). See 38 C.F.R. § 3.156(c)(1). Here, the Board finds that, while new and material evidence has been received, the claim should actually be reconsidered under 38 C.F.R. § 3.156(c) rather than considered reopened under 38 C.F.R. § 3.156(a) due to the receipt of the SPRs and STRs in July 2016 that had not yet been addressed until the current appeal. As such, the Board will reconsider the claim, which entails a de novo review on the merits. II. Service Connection 3. Service connection for left knee patellofemoral dysfunction with degenerative arthritis. 4. Service connection for right knee degenerative arthritis. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that he is entitled to service connection for his bilateral knee disabilities as they are a direct result of his service in support of OIF. He specifically asserts that during that time, and given the circumstances of his service as a gunner, he began to experience knee problems manifested by pain and for which he reported to sick call for treatment. See December 2018 and November 2021 Appellant's Briefs. See also August 2011 VA examination (the Veteran reported he had to be bending down most of the time to do his job and his knees were always hurting). The Veteran has current diagnoses of bilateral knee pain, left knee patellofemoral dysfunction (bipartite patella) with degenerative arthritis, and right knee degenerative arthritis. See March 22, 2017 VA radiology report; see also August 2011 VA examination report. As such, the current disability element of the claim has been established. Throughout the pendency of the appeal, the Veteran has submitted evidence indicating that he participated in 1,103 hours of combat operations and patrols as a gunner in Iraq (see February 15, 2011 Recommendation for Award); and that the Veteran completed over 175 route clearance patrols on a 10-month period during which he had to carry an average of 55 lbs. of equipment as part of his duties, while standing for over 900 hours on a running vehicle. See February 24, 2011 Statement of Medical Examination and Duty Status. The health provider who signed the foregoing medical statement indicated, in essence, that the overuse and prolonged standing during route clearance missions during OIF directly contributed to the retropatellar pain syndrome (RPPS) diagnosed at the time. Service personnel records (SPRs) show the Veteran had service in Iraq and was involved in combat operations for which he was awarded the Army Commendation Medal and the Combat Action Badge. Moreover, the Veteran has been awarded service connection for PTSD based on combat in service. Service treatment records (STRs) reflect that the Veteran was found sound during his June 1997 entrance examination. A June 2004 Post-Deployment Health Assessment shows no reports, complains or treatment sought for a bilateral knee disability. A subsequent May 2007 periodical medical examination reflects that the Veteran continued in good health. In a March 2010 Pre-Deployment Health Assessment, the Veteran referred to his health as excellent. In February 2011, the Veteran sought treatment for bilateral knee pain for the first time. A health provider noted that the Veteran's complains of knee pain were noted under the patellar area. The Veteran described his pain as constant and achy. See February 5, 2011 Outpatient record. The Veteran reported a 3 to 5 month history of knee pain, left worse than right. See February 5, 2011 consultation sheet. The health provider noted that the Veteran had 10 days left in theater and physical therapy was not possible before redeployment. Shortly thereafter, the Veteran completed a health assessment in which he indicated that his health was fair, somewhat worse than when he deployed, and expressed his concerns regarding his swollen, stiff, or painful joints, to include his knees. See February 24, 2011 Post-Deployment Health Assessment. After review of the Veteran's lay statements, SPRs and STRs suggesting treatment provided for bilateral knee problems from the duties performed during operations in Iraq, to include combat service, the Board finds the Veteran's assertions, in terms of the onset of his disability, symptoms experienced and treatment sought and received during that period, competent and credible since it is consistent with the circumstances of such service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the in-service element of the claim has been also established. As to the nexus element of the claim, VA treatment records show that in April 2011, which is approximately one month and a half following the Veteran's return from theater, the Veteran sought emergency treatment for chronic bilateral knee pain. The VA provider noted that the Veteran's pain has been present since active duty. See April 8, 2011 VA progress notes. A radiography report revealed no fractures, abnormal lytic or sclerotic lesions, or dislocations. The report further shows "no suspected" suprapatellar effusions and that bone density appeared within normal limits as well as the joint spaces. Nevertheless, the provider noted a suspected left bipartite patella, anatomical variant. A subsequent March 2017 VA radiology examination revealed medial femorotibial joint space narrowing with subchondral sclerosis, particularly on the right knee, and left bipartite patella. The Veteran's disabilities were described as bilateral knee degenerative changes with left knee bipartite patella. See March 22, 2017 radiology report. In sum, VA treatment records show that ever since separation from his last period of active duty, the Veteran has continued to seek treatment for his bilateral knee disability, manifested by joint pain or swelling and also assessed as bilateral knee arthralgia. See June 1, 2011, and December 23, 2012 progress notes; see also June 2017 Vet Center Summary of Treatment (the Veteran continues to endorse bilateral knee pain). The Veteran was initially afforded a VA examination in connection with these claims in August 2011. At that time, the VA examiner acknowledged that the Veteran's bilateral knee pain had its onset during service in 2010. The Veteran reported he had to bend down most of the time to perform his job as a gunner, which caused pain to his knees. The Veteran reported that the condition improved since he began taking pain medication. The examination report reflects that the bilateral knee pain and stiffness have been slowly affecting him as it produces tenderness, decreased speed of motion, and is accompanied by flare-ups that occur weekly and last for hours. The report reflects that squatting and stairways precipitate pain. With respect to the right knee, the VA examiner noted tenderness, crepitation, and patellar abnormality described as subpatellar tenderness. With respect to the left knee, the VA examiner noted tenderness, crepitation, grinding, and patellar abnormality described as subpatellar tenderness. The report further shows objective evidence of pain on motion bilaterally. The examiner described his disability as bilateral knee patellofemoral dysfunction which produces functional loss such as decrease mobility and problems with lifting and carrying due to pain. The examiner, however, opined that the Veteran's bilateral knee disability is not "etiologically related to Gulf War conditions" as these are conditions with a diagnosable basis and not etiologically related to any environmental hazards." In December 2011, the RO requested from the VA examiner to proffer a nexus opinion not based on the presumptive provisions set forth in 38 C.F.R. § 3.317, but on a direct basis. Accordingly, an addendum opinion was obtained in February 2012. The VA examiner opined, in pertinent part, that the Veteran's bilateral patellofemoral dysfunction is less likely than not related to service as the actual physical examination "was almost unremarkable" in terms of range of motion and radiological studies so as to account for any actual medical conditions. He further noted that any treatment the Veteran may have received for his knees was most likely transient and acute without any apparent permanent impairment. The Board takes into consideration the Veteran's and his representative VSO's lay statements in support of his claim. After considering his arguments, particularly in regard to the onset of his current bilateral knee disability and the symptoms experienced during and ever since service, the Board finds them persuasive, convincing and credible. See Joyner v. McDonald, 766 F.3d 1393 (Fed. Cir. 2014); Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the August 2011 VA examiner relied his opinion on the fact that the symptoms and treatment received was "transient and acute without any apparent permanent impairment," the Board notes that many years later the Veteran continues to complain of bilateral knee pain and VA treatment records show that diagnoses remain in effect for the claimed knee disabilities. The examiner's opinion may have been also based on inaccurate information as the report acknowledges patellar abnormality and objective evidence of pain on motion, whereas the examiner indicated that the actual examination was "almost unremarkable." In addition, in this case the Veteran not only engaged in combat during service in support of OIF but has also provided satisfactory and credible lay and medical evidence regarding the circumstances of his service during that time. The Board also notes that the symptoms the Veteran still endorse, such as pain and stiffness, are similar in nature to those the Veteran reported to his health providers during service. The Veteran's statements as to the onset and etiology of symptoms experienced ever since have been consistent throughout the pendency of the appeal See Flynn v. Brown, 6 Vet. App. 500, 504 (1994) (regarding service connection, VA must consider the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence.) Therefore, the Board finds that the evidence has reached a level of equipoise as to the nexus element of the claim. In light of the above, the Board finds that the Veteran's current patellar dysfunction with degenerative changes of the left knee and degenerative changes of the right knee had their onset during service and are related to the circumstances and hardships involved in a combat environment. This is particularly so when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for patellar dysfunction with degenerative changes of the left knee and degenerative changes of the right knee. David Jimerfield Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.