Citation Nr: 21006508 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-07 012 DATE: February 4, 2021 ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for left hallux valgus and right hallux nail, bilateral, is remanded for additional development. FINDINGS OF FACT 1. The Veteran’s left knee disability was incurred in service. 2. The Veteran’s right knee disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to March 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2018 rating decision, the RO granted service connection and assigned an initial 10 percent disability rating for a bilateral foot condition. The Veteran subsequently perfected an appeal of the assigned disability rating. In December 2015 and July 2017, the Board remanded the issues of entitlement to service connection for a right knee disability and a left knee disability. In August 2018, the Board denied the Veteran’s claims of entitlement to service connection for right and left knee disabilities. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. In November 2019, the Board again denied the Veteran’s claims of entitlement to service connection for a right knee disability and a left knee disability. The Veteran again appealed the Board’s decision to the Court. In July 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Arthritis or degenerative joint disease are chronic diseases for VA purposes. 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. In an April 2008 statement, the Veteran contended that she has had bilateral knee pain since service that has worsened over time. At the outset, the Board notes that there are no contemporaneous service records available for review. In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Post-service treatment records show that the Veteran requested x-rays of her knees in August 2007. In September 2007, the Veteran again reported knee problems. An October 2007 private treatment record noted the Veteran experienced bilateral knee pain and stiffness following a fall and injury to her left knee two months prior. She reported continuing pain in November 2007. A December 2007 private medical record noted the Veteran’s left knee demonstrated mild swelling and tenderness, but there was no evidence of arthritis or fracture. The Veteran underwent an MRI in December 2007 to diagnose her continued left knee pain. The MRI report reflected a somewhat complex tear of the posterior horn of the medial meniscus and degenerative changes in the medial and lateral compartments. A January 2008 private medical record noted that the Veteran fell in August 2007 and experienced persistent knee pain since. In a letter received by VA in January 2009, the Veteran’s treating physician noted that the Veteran underwent left knee surgery in May 2008 and had a post-operative diagnosis of left knee status post partial medial meniscectomy and thermal chondroplasty of the patella and removal of loose body. In a letter dated in October 2010, the Veteran’s former First Sergeant corroborated the Veteran’s report of an in-service injury, stating that during service the Veteran incurred extensive injuries to her feet as a result of extensive running and walking long periods wearing military combat boots. He recalled that after she had a soft cast removed, she needed to wear tennis shoes instead of combat boots. In August 2017, the Veteran was afforded a VA knee examination. The Veteran reported that she began to experience bilateral knee pain in the late 1980s that persisted, and that she was later diagnosed with bilateral knee arthritis. The VA examiner opined that the Veteran’s bilateral knee disorder was less likely than not related to service. The examiner reasoned that the Veteran’s lay statements were inconsistent with the available post-service treatment records which revealed no evidence of chronic bilateral knee symptoms until her 2007 fall that resulted in a knee injury and was the more likely etiology of her current bilateral knee signs and symptoms. After review of the record, the Board finds that service connection for a bilateral knee disability is warranted. Here, the Board finds the Veteran’s reports of bilateral knee pain both competent and credible, especially given that the Veteran’s described symptoms prior to her diagnosis of bilateral knee arthritis are the same as the ones described in service. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). The above reflects that the evidence before the Board as to the issues of whether the diagnosed bilateral knee arthritis is related to service consists of a negative VA opinion, and competent, credible lay testimony indicating that since service the Veteran has had symptoms that were later diagnosed as bilateral knee arthritis. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, in light of the positive and negative evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran developed a chronic bilateral knee disability in service. Affording her the benefit of the doubt, the Board concludes that service connection for a bilateral knee disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran currently has a single 10 percent rating for left hallux valgus and right hallux nail, bilateral, evaluated as analogous to plantar fascitis under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran’s statements in a June 2018 Notice of Disagreement and January 2020 Substantive Appeal suggest the severity of her bilateral left hallux valgus and right hallux nail may not be accurately reflected by the evidence currently of record. Accordingly, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of her service-connected left hallux valgus and right hallux nail, bilateral. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA examination to assess the current nature and severity of her service-connected left hallux valgus and right hallux nail, bilateral. The claims file should be made available to and reviewed by the examiner. All indicated testing should be carried out and the results recited in the examination report. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.