Citation Nr: 21010461 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-24 523 DATE: February 24, 2021 ORDER Entitlement to service connection for residuals of a right knee condition is granted. Entitlement to service connection for a left knee condition is granted. FINDINGS OF FACT 1. Through showing a continuity of symptoms after service, the Veteran’s right knee condition has been linked to his military service. 2. Through showing a continuity of symptoms after service, the Veteran’s left knee condition has been linked to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5103(a); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5103(a); 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 July 1993 to July 1996, and on active duty for training from March 2004 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a December 2020 virtual Board hearing. A complete copy of the hearing transcript has been associated with the Veteran’s electronic claims file. Service Connection Generally, to establish service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The law allows service connection for certain chronic diseases enumerated in 38 C.F.R. § 3.309(a) on a presumptive basis, so long as certain regulatory criteria are satisfied. When applicable, the presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [38 C.F.R. § 3.303(b)] is to relax the requirements of [38 C.F.R. § 3.303(a)] for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in 38 C.F.R. § 3.309(a)). Specifically, 38 C.F.R. § 3.303(b) provides that when a chronic disease is shown as such in service (or within a presumptive period under 38 C.F.R. § 3.307), then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). For the showing of chronic disease in service, there is required 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 or a diagnosis including the word “Chronic.” If the evidence is not sufficient to show that a disease noted in service was chronic at that time, then the claim may be established with evidence of continuity of symptoms after service discharge, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. See Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). 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 a] presumptive period.” Walker, 708 F.3d at 1336. 1. Entitlement to service connection for residuals of a right knee condition The Veteran seeks entitlement to service connection for a right knee disability that he contends was suffered during his active duty service and continues through the present day. At the December 2020 virtual Board hearing, the Veteran indicated that he suffered an injury in 1993 after running through a field and stepping into a hole in basic training. He asserts that the pain continued, and he eventually was forced to go to sick call while stationed in Korea. Since separation, he was self-managing the pain with over-the-counter (OTC) medication and knee braces. He contends the condition has been present since 1993 and has become progressively worse. First, the May 2015 VA examiner confirmed the presence of a right knee meniscal tear and right knee degenerative arthritis. As arthritis is included in the list of chronic diseases under 38 C.F.R. § 3.309(a), presumptive service connection consideration is warranted. Under the Court’s holding in Walker, the Board is now tasked with assessing whether the Veteran’s hypertension was chronic in service, or if not, whether such condition noted in service is otherwise supported by chronicity of symptomatology following discharge from service. The Veteran’s service treatment records reveal right knee pain for the past one month after falling into a hole and twisting his knee. See December 1993 Service Treatment Record. The Veteran contends the injury was chronic in nature during service, however records during service in Korea cannot be located. In this case, the determination of whether the injury was chronic in service is not required because the Veteran has sufficiently shown continuity of symptomatology since discharge from service. See 38 C.F.R. § 3.303(b). On the December 1996 separation exam, it was noted “Back and knee problems need to be evaluated by proper military authorities.” It was also noted, “This young man has several medical problems which were not dealt with during his ETS physical.” This evidence tends to corroborate the Veteran’s account of his injury and ongoing sequela that was testified to during the December 2020 virtual Board hearing. Further evidence indicates continuous knee pain post-service. A January 1999 private treatment note states that the Veteran needs a note to decline PT test and bilateral knees. Lastly, a VA examination dated March 1999 notes episodic pain in his knee with occasional giving way episodes. The examiner opined that the pain is related to the Veteran’s injury in service. The preponderance of the evidence establishes that the Veteran’s right knee injury manifested in a continuity of symptoms following his separation from active duty service. Accordingly, the Veteran has satisfied the regulatory criteria for entitlement to service connection for a right knee injury on a presumptive basis, and his appeal is granted. 2. Entitlement to service connection for a left knee condition The Veteran contends that he injured both of his knees after stepping into a hole in 1993. However, the service treatment record of December 1993 only notes an injury to the right knee. The Veteran explained that he was treated in 1994 at Camp Casey, Korea and was told there is no surgery for his injury and that he would just have to live with it. He also stated that all of his military documentation for the knee is not available, as his records were lost by the military when he returned from Korea. See March 2012 Correspondence. Whether the Veteran’s assertions regarding treatment in Korea can be corroborated is not consequential to the adjudication of this claim because the Veteran has shown continuity of symptomatology for the left knee condition as well as the right knee. The December 1996 separation exam notes the need for back and knee problems to be evaluated. The separation examination did not specifically mention only one knee, nor does it eliminate the possibility that the examiner was referring to the knees bilaterally. Further, the exam notes cramps in legs secondary to left knee injury. This is probative evidence that a left knee injury occurred, and the Veteran was still suffering from its effects. Further supporting evidence is the January 1999 private treatment note regarding bilateral knees and an October 2012 left knee arthroscopy which revealed a medial meniscus tear. (Continued on the next page)   Lastly, the July 2016 VA examiner opined that the Veteran’s condition is consistent with his age and normal wear and tear on the body. However, the examiner presented no evidence that supports the notion that a 37-year-old male would present with chronic knee pain and require a meniscectomy. Conversely, the rationale that the Veteran’s condition is age-related tends to support the Veteran’s claim because his chronic knee problems would not be present without a precipitating injury. The only injury of record occurred during active duty service. None of the VA examiners or private medical doctors proposed a theory of any supervening injury or other intercurrent cause of the Veteran’s condition. The Board is aware that the Veteran, as a lay person, is competent to report on the onset and continuity of his current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). When viewed holistically, the Veteran’s competent and credible lay statements establish continuity of left knee pain, with initial onset during his active duty service, sufficient to support the award of service connection under 38 C.F.R. § 3.303(b). The appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.