Citation Nr: 21075573 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-26 705 DATE: December 20, 2021 ORDER Entitlement to service connection for a right knee disability, diagnosed as osteoarthritis and chondromalacia patella, is granted. FINDING OF FACT A right knee disability diagnosed as osteoarthritis and chondromalacia patella is attributable to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability diagnosed as osteoarthritis and chondromalacia patella are met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran served in the Army from September 1996 to November 2003 and from September 2011 to October 2012. He testified at a Board hearing that he incurred right knee disability on a cumulative basis from his many years of exercise, use, training, stress, jumping, running, and carrying heavy loads, to include during his strenuous service in a war zone in Iraq and Afghanistan. The service treatment records (STRs) reflect a September 2012 notation of the following: "PCM in home state for F/U right shoulder and knee issues." The Veteran has asserted that he injured his right knee at the same time he injured his right shoulder (which is service-connected). VA clinical records show that the Veteran was treated for right knee pain from June 2014 onward. An October 2014 magnetic resonance imaging (MRI) showed chondromalacia in the patellofemoral and lateral compartments. Also, October 2014 records showed that he had arthritis under the kneecap. In March 2015, the Veteran was afforded a VA examination. Although the examiner noted that there was a past history of right knee strain in 2010 and pain which started at that time (which was between the two periods of the Veteran's active duty service), this is not shown in the records. The examination did not show any abnormalities. The examiner noted the inservice findings in 2012 and indicated that since there were no further inservice findings and since the Veteran's symptoms began about five years earlier, the examiner could not conceive of any relationship of his knee symptoms to military service. At this juncture, the Board notes that the Veteran was separated from service one month after the September 2012 complaints. The examiner did not discuss the impact of the Veteran's inservice duties nor did he comment on the finding of arthritis within two years of separation. As such, this medical opinion's probative value is diminished. A subsequent July 2018 VA examination showed that the Veteran had chondromalacia of the patellofemoral and lateral compartments with limitation of motion on flexion. An examination the next month reflected a diagnosis of chondromalacia patella. The July 2018 examiner opined that the right knee condition is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner referred to the inservice findings which indicated that there was a history of right knee issues during service. The examiner opined that the Veteran's STRs are therefore consistent with the onset of claimed right knee condition during military service. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). The Board then is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). (Continued on the next page) In this case, the Board finds that the Veteran provided credible and competent evidence to the July 2018 examiner as well as to the Board at his hearing regarding his history of right knee pain dating from service due to inservice use and injury of his knee. Inasmuch as the July 2018 VA opinion clearly was based upon both examination of the Veteran and consideration of his documented medical history and statements, and because the rationale underlying the opinion is reasonable and consistent with the evidence of record, this opinion constitutes the most probative evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Therefore, service connection for a right knee disability is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.