Citation Nr: 21005906 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-27 395 DATE: February 2, 2021 ORDER Entitlement to service connection for a left knee disability, characterized as left meniscal tear, status post meniscectomy, is granted. Entitlement to service connection for a right knee disability, characterized as degenerative arthritis, is granted. FINDING OF FACT The Veteran’s bilateral knee disabilities, characterized as left meniscal tear, status post meniscectomy, and right knee degenerative arthritis, have not been satisfactorily disassociated from documented in-service knee injuries. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, characterized as left meniscal tear, status post meniscectomy, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability, characterized as degenerative arthritis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1984 to June 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2015 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) Pappas. A transcript of his testimony is associated with the record. In August 2018 the Board denied the Veteran’s claims on appeal, and he appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court, based on a Joint Motion for Remand (JMR), granted the JMR and remanded the above issues for further consideration. Historically, the Board remanded these issues in October 2017, instructing the RO to request a complete copy of the Veteran’s service treatment records (STRs) from all potential sources, including, but not limited to, the Records Management Center (RMC), and the medical facilities at Fort Drum, New York; all attempts to locate the additional STRs were to be documented in the claims file, and the Veteran notified of these efforts. Subsequently, the Board notes that in May 2018 the RO submitted a VA 21-3101 request for STRs to the National Personnel Records Center (NPRC) and additional records appeared to be added to the record. However, pursuant to the JMR, the Board remanded the case again in October 2019. On remand, the Veteran elected to attend another hearing. He and his wife testified before the undersigned VLJ Kennedy at a Board videoconference hearing in November 2020. A transcript of this hearing is associated with the record, as well. As the Veteran presented testimony at two hearings before two different VLJs on the service connection claims on appeal, a panel decision of three members is appropriate. Pursuant to 38 C.F.R. § 20.707 and the holding in Arneson v. Shinseki, 24 Vet. App. 379 (2011), during the November 2020 hearing, the Veteran was advised of his right to another hearing before the third member of the panel pursuant to Arneson; however, he elected to waive his right to a third hearing before that individual. Therefore, in accordance with Arneson, an additional hearing is not needed. Service Connection 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The Veteran contends that he has a bilateral knee disability related to injuries sustained in service. He testified that during Air Assault School he had severe knee injuries. See, e.g., November 2020 Board hearing transcript, p. 4. He noted that he recalled repelling down a rope and not being able to walk; so, he got treatment for a month before he was able to return to Air Assault School and complete his training. Id. at 4-5. He further noted that at separation from service in June 1991, he marked swollen and painful joints without specifying at the time, but that he was referring to his right and left knees, as these were the only joint injuries he had in service. Id. at 3-4. He testified at the September 2015 Board hearing that while repelling down the tower in Air Assault School he hit the wall and his knees collapsed and were swollen; so, he had to delay Air Assault School for a while. See September 2015 Board hearing transcript, p. 11. He noted that he continued to have problems with his knees since the military. Id. at 12. The Board concludes that the Veteran has a current disability that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of medial meniscal tear of the left knee and mild degenerative joint disease of the right knee, per a September 2011 magnetic resonance imaging (MRI) scan. A recent VA examination indicates that the Veteran has right knee degenerative arthritis and left knee meniscal tear, status post meniscectomy. See March 2018 VA examination report. During service, the service treatment records (STRs) show that the Veteran underwent an x-ray of the right knee in March 1990 and an x-ray of the left knee in May 1990. The March 1990 x-ray notes the Veteran was seen for possible medial meniscal tear and anterior cruciate strain. The x-ray showed a radiolucent 1cm defect in the metaphysis of the tibia laterally. There was no fracture seen. The left knee x-ray showed no evidence of fracture, dislocation, or destructive lesions; the surrounding soft tissues appeared within normal limits. Although there are no corresponding treatment records to indicate why the Veteran’s knees were x-rayed, it is reasonable to infer that the Veteran must have suffered at least an acute injury to the knee(s) to warrant the request and/or need for x-rays, particularly since it was noted that the Veteran had possible medial meniscal tear and anterior cruciate strain. Similarly, the Veteran’s June 1991 Report of Medical History at discharge shows that both the “yes” box and the “no” box were checked in reference to swollen or painful joints; however, the check mark in the “yes” box was ultimately crossed out. As noted, the Veteran clarified during the November 2020 Board hearing that he was referring to his bilateral knees when he noted swollen and painful joints at separation from service. Thus, the question becomes whether the current disability is related to service. On this question there are opinions in favor of and against the claim. The evidence against the claim includes several VA examiners, who reviewed the Veteran’s claims file, including his STRs, and opined against a finding of service connection. See May 2016, March 2018, and May 2018 VA examination reports. These examiners acknowledged the Veteran’s reports of bilateral knee pain since service, but they pointed out that the Veteran did not report knee pain on his June 1991 Report of Medical History, and his knee x-rays from 1990 did not show objective findings of arthritis or a meniscal tear. The probative value of these opinions, however, is undermined by the testimony the Veteran provided at the November 2020 Board hearing clarifying that he was referring to his bilateral knees when he complained of swollen and painful joints at separation from service. While this evidence is not contemporaneous with the record, there is no reason shown to doubt the Veteran’s credibility in this regard. He also is competent to assert that he experienced swelling and joint pain in his knees at separation from service. The evidence in favor of the claim includes an April 2015 correspondence from one of the Veteran’s private physicians, Dr. J.N., MD, who indicated that he had been treating the Veteran since 2011, and was aware that “[the Veteran] sustained moderate injuries to both his knees while serving in the military from 1984-1991.” Dr. J.N. also indicated that since service, the Veteran had developed increasing bilateral knee pain and his knees had become “severely arthritic.” Dr. J.N. opined that, because the Veteran’s job since service has never been physically demanding, the current knee problems are due to the injuries sustained during service. The Board noted in its prior (and now-vacated) decision that although the above opinion is supportive of the Veteran’s claim, the opinion is not highly probative because Dr. J.N. appears to have based his opinion on the Veteran’s self-reported history without any review of the STRs. As noted above, the STRs only reflect that the Veteran’s knees were x-rayed, presumably due to acute injury or pain; but there is no indication that he suffered “moderate injuries to both knees” during service. Nonetheless, the Board accepts the Veteran’s competent and credible statements regarding his knee injuries in service during Air Assault School and his testimony in 2020 that he was referring to his knees when he noted swollen and painful joints at separation from service. His testimony and statements have been consistent in this regard in 2015 and 2020 and are consistent with the circumstances of his service. The Veteran submitted a copy of his Certificate of Training at Air Assault School in May 1990, which awarded him the Air Assault Badge. This is consistent with his statements regarding injuries during Air Assault School, including the reported knee injury while repelling down a wall. While Dr. J.N. indicates that the Veteran’s knees have become “severely arthritic,” and the current radiology reports note only mild degenerative changes of the right knee, see, e.g., September 2015 x-ray studies of the right and left knee, this, in and of itself, is not enough to undermine the probative value of this opinion. Upon review of the record, the Board finds that the Veteran’s bilateral knee disabilities, characterized as left meniscal tear, status post meniscectomy, and right knee degenerative arthritis, have not been satisfactorily disassociated from documented in-service knee injuries. As such, the evidence is at least in equipoise as to the question of whether the Veteran’s current bilateral knee disabilities are related to in-service injury. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a bilateral knee disability characterized as right knee degenerative arthritis and left knee meniscal tear, status post meniscectomy, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.