Citation Nr: 21012827 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-15 467 DATE: March 5, 2021 ORDER Service connection for a left knee disability, variously diagnosed as chondromalacia, internal derangement, sprained lateral collateral ligament, posttraumatic arthritis, and degenerative arthritis of the left knee, is granted. FINDING OF FACT The Veteran’s service records document left knee pain during active service and symptoms have been continuous since service, resulting in formal current diagnoses that include arthritis of the left knee. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for establishing service connection for a left knee disability, variously diagnosed as chondromalacia, internal derangement, sprained lateral collateral ligament, posttraumatic arthritis, and degenerative arthritis, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had active duty in the United States Army from January to May 1990 and from September 1992 to May 2012, with prior periods of service in the Reserve and active duty for training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Review of the electronic claims file reveals that the Veteran was not given notice under the Veterans Claims Assistance Act of 2000 and implementing regulations, which impose obligations on VA to provide claimants with notice and assistance in the development of claims. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, as the Board herein grants service connection for a left knee disability, the veteran does not require further notification or assistance to substantiate his claim. Following certification of this case to the Board in January 2017, additional VA treatment records were associated with the claims file. Although the evidence is VA-generated and there is no signed waiver from the Veteran or his representative of initial review by the RO, the agency of original jurisdiction, remand for initial review of the treatment records by the RO is not warranted as the Board has determined that the benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c). As phrased on the title page of this decision, the Board recharacterized the issue of service connection include consideration of the current diagnoses of arthritis, to better reflect the information contained in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. Id.; see King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that his left knee disabilities originated in service, the result of trauma to his knees caused by entering, riding in, exiting, and jumping from tanks. See Board hearing transcript dated January 15, 2021. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with chondromalacia, internal derangement, sprained lateral collateral ligament, posttraumatic arthritis, and degenerative arthritis of the left knee. See VA Knee and Lower Leg Conditions examination report dated August 26, 2014 at pg. 2; VA X-ray report dated November 19, 2019; VA orthopedic surgery consultation dated December 17, 2019. Arthritis is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a). As such, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 apply to the service connection issue decided herein. For a chronic disease such as arthritis, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Review of the Veteran’s service treatment records reflect that upon enlistment, examination of the Veteran’s musculoskeletal systems and lower extremities were normal. In May 2010, the Veteran complained of left knee pain but denied any trauma to the knee, and a left knee x-ray was negative. The diagnosis was left knee pain. Although “Knee joint pain” is included on several lists of chronic illnesses found in the Veteran’s service treatment records, these references do not specify right or left knee despite reports of right and left knee pain during service. During his retirement examination in February 2012, the Veteran denied knee trouble and clinical evaluation found no abnormalities of the knees. Hence, the service records do not establish a chronic left knee disability during service. Nevertheless, post-service treatment records reflect that the Veteran continued to experience left knee pain after separation from service. Notably, October 2013 x-ray images of the Veteran’s left knee obtained at Munson Army Health Center (MAHC) showed evidence of some arthritic changes. However, the radiologist reported these as “no significant arthritic changes.” See Chronological Record of Medical Care entry dated October 11, 2013. By June 2014, x-rays indicated left knee osteoarthritis. See VA medical record dated June 14, 2014. February 2015 MAHC treatment records note that the Veteran has “posttraumatic arthritis in both knees secondary to medial meniscal tears that have occurred in the military for both left and right medial compartments[.]” See Chronological Record of Medical Care entry dated February 22, 2015. VA treatment records dated November 2019 reflect continuing left knee pain and a treatment plan for degenerative arthritis of the left knee. A December 2019 VA x-ray report notes “mild narrowing of the medial joint space of the left knee and mild tricompartmental [degenerative joint disease] of the left knee.” See VA orthopedic surgery consultation dated December 17, 2019 (and x-ray report dated November 19, 2019). During the January 2021 Board hearing, the Veteran indicated that he has experienced left knee pain since service. See Board hearing transcript dated January 15, 2021 at pg. 11. The Board acknowledges that there is a negative VA medical opinion of record. An August 2014 VA examiner opined that the Veteran’s left knee disability was less likely than not related to service, explaining that there was one instance in which the Veteran was seen for left knee pain in May 2010, and that a knee x-ray at that time was negative for bony abnormalities, including arthritis, and that the diagnosis was “knee joint pain only.” The examiner further stated that “since pain is considered a symptom and not an acceptable diagnosis for VA purposes,” effectively there was no in-service left knee diagnosis. See VA Kee and Lower Leg Conditions examination report dated August 26, 2014. Nevertheless, the fact that a clinical diagnosis was not rendered during service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the United States Court of Appeals for Veterans Claims recently determined that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). While the VA examiner acknowledged the August 2013 post-service treatment notes and x-ray that appeared to be negative for arthritis, the examiner did not discuss the October 2013 x-rays indicating evidence of some arthritic changes in the Veteran’s left knee, evidence that was of record at the time of the examination. See Nieves-Rodriguez, 22 Vet. App. at 304 (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). The Board finds the more probative and persuasive evidence to be the Veteran’s competent statements describing left knee pain since his retirement and separation from service, see Kahana, supra, as well as treatment records reflecting the Veteran’s in-service injury and ongoing post-service treatment and diagnosis of arthritis of the left knee. These records, based upon examination and treatment that occurred prior to the Veteran’s discharge from service, reference left knee pain, and post-service treatment records reflect continuing pain and degenerative symptoms with x-ray evidence of arthritis approximately 15 months after his separation from service and continuing thereafter. In this regard, the Board finds the Veteran’s statements and the October 2013 and February 2015 MAHC treatment notes as well as the November 2019 and December 2019 VA treatment notes particularly relevant and probative in this appeal. In summary, the evidence in this case clearly shows that the Veteran was diagnosed with left knee pain prior to discharge from active service that has continued since service, being variously diagnosed as chondromalacia, internal derangement, sprained lateral collateral ligament, posttraumatic arthritis, and degenerative arthritis. Viewing this evidence in conjunction with the other medical evidence of record and statements from the Veteran, the Board concludes that the Veteran has constantly and consistently complained of left knee pain from the time of his left knee injury in service to the present date (i.e., exhibited a continuity of symptomatology). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on continuous post-service symptoms, presumptive service connection for left knee arthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). The grant of presumptive service connection renders moot all other theories of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.