Citation Nr: 21013178 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-42 731A DATE: March 8, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s left knee disability was incurred in and etiologically related to service. 2. The evidence is in equipoise as to whether the Veteran’s right knee disability was incurred in and etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1997 to March 2002. He also had service in the United States Army Reserve from March 2002 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a video conference hearing on February 25, 2021. As the appeal can be granted in full, the Board is expediting this decision. A transcript of the hearing will be associated with the claims file at a later time. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain “chronic” disorders, including arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases, as defined by regulation, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required to establish entitlement to service connection. The Veteran contends that he injured his knees during service during “ruck runs” and “force runs.” He indicated that he was treated at Fort Lewis for his knee injuries. See September 2016 Statement. The record reflects that the Veteran’s service treatment records are unavailable. See November 2016 VA Memorandum. In addition, the record contains an April 2018 certification that a thorough review of all Department of Defense systems was conducted, and no further records exist for the Veteran. In instances where a Veteran’s service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant’s favor. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Service personnel records contain an April 1997 enlistment examination which shows the Veteran had no abnormalities pertaining to his knees prior to service. In a December 2016 statement, S.M. (initials used to protect privacy), a fellow service member, indicated that he had served with the Veteran from 1999 to 2001 and that they were involved in numerous field training exercises, including jumping off military vehicles with heavy equipment and “ruck runs.” S.M. indicated that he remembered when the Veteran injured his knee, and that he refused to seek medical help at the time because he was afraid of being labeled as a “malingerer.” He further noted that he did not remember which knee was injured, but that he remembered that the Veteran was injured and in pain. The Veteran also had a period of reserve service following his active duty service, however his service treatment records from that period of reserve service are also unavailable. In a July 2007 post-service private medical record, issued by R.G., the Veteran’s private physician, it was noted that the Veteran had trouble with his left knee since service when he “blew out the knee” and that he had never had surgery on it. The Veteran reported that his pain was continually becoming worse, and that it comes and goes. A September 2009 operative note from Yakima Valley Memorial Hospital documented that the Veteran underwent an arthroscopic synovectomy on his left knee. The private surgeon noted that there was scarring between the fat pad, ligamentum mucosum, and anterior cruciate ligament. In February 2021, R.G., the Veteran’s private physician since 2003, issued an opinion where he documented that the Veteran had reported initially injuring his left knee in service, but then had reported experiencing pain in both of his knees during and after the tenure of his service. R.G. also reviewed the Veteran’s medical records and noted that the scarring observed by the surgeon performing the September 2009 procedure indicated that the injury had been around for some duration and was not inconsistent with the injury sustained during service. Upon consideration of the record, the Board finds that the weight of the evidence is in relative equipoise as to whether the Veteran injured his knees during service as evidenced by the Veteran’s September 2016 statement, July 2007 post-service private treatment record, and the February 2021 opinion issued by R.G. While the Veteran reported injuring his left knee in the July 2007 treatment record, in both the February 2021 opinion and his September 2016 statement, the Veteran has reported experiencing pain in both of his knees during and since service. In addition, the Veteran has also submitted a statement from an individual who served with him that indicates he injured his knees in service. While the Veteran did have reserve service following his period of active duty service, as mentioned above, any records from that period are unavailable. Thus, it is unclear whether the Veteran may have reported experiencing symptoms related to his knees, even though he qualified for reserve service. Moreover, the Veteran’s private physician, R.G., who has treated the Veteran since 2003, which was during his reserve service, noted in his February 2021 opinion that the Veteran has been experiencing pain in his knees since service. Thus, given this evidence, along with the heightened obligation to consider whether the evidence is in equipoise when service records are unavailable, the Board finds that the evidence is in equipoise as to whether the Veteran injured his knees during service. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran injured his knees during service. April 2016 private treatment records from R.G. document that the Veteran has a diagnosis of chondromalacia of the patella that affects both knees. April 2012 X-rays of the left knee also show osteoarthritis and posttraumatic changes with chondromalacia of the patella. In his February 2021 opinion, R.G. concluded, after reviewing and documenting the Veteran’s medical history, it is more likely than not that the Veteran’s current knee disabilities were a direct consequence of injuries sustained during service. In support of his opinion, R.G. reviewed and documented the Veteran’s medical history, which included the September 2009 operative note that indicated the scarring observed had been around for some duration and was not inconsistent with the Veteran’s reports. R.G. also noted that the Veteran had been experiencing pain in his knees since service. The record does not contain any other opinion with regard to nexus. Given the positive February 2021 opinion, the Board finds that service connection for right and left knee disabilities is warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.