Citation Nr: 21013936 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-61 859 DATE: March 10, 2021 ORDER Service connection for a right knee disorder is granted. FINDING OF FACT The Veteran’s current right knee disorder is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 1992 to July 1999. The Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is of record. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); 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). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran maintains that he injured his right knee during a training exercise at night in 1992. He contends that his right knee has bothered him since the time of the injury. Service treatment records reveal no complaints or findings of a right knee disorder. On his May 1999 medical assessment report, the Veteran indicated that he injured his ribs in service but did not report any other injuries or illnesses. In support of his claim, the Veteran has submitted numerous statements from family members and fellow soldiers who have indicated that he reported injuring his right knee when stepping into a hole in May or June 1992. The Board does not doubt that the Veteran injured his right knee during service during a training exercise. The question is whether the Veteran has a current disability that is related to that inservice injury. In conjunction with his claim, the Veteran was afforded a VA examination in December 2017. Following examination of the Veteran and review of the file, the examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner noted that in the absence of any documentation of the injury, it had been conceded that the injury the Veteran described in 1992 did occur based on his MOS as a security forces journeyman. The examiner stated that despite that injury to the right knee, the Veteran completed his final 7 years of service without incident. He observed that after separation in 1999, there was no documentation of recurring or persistent right knee problems until he underwent x-rays in October 2016, which were normal. He noted that a March 2017 MRI showed a small popliteal cyst and a trace effusion, both indicative of some degree of subtle injury or inflammation. He stated that even conceding the injury in 1992, the fact that the Veteran served his full 7 remaining years in service without incident coupled with the fact that there was no evidence of recurring or persistent right knee pain from the time of the incident in 1992 until 2016 (a total of 24 years), it was less likely than not (in fact, beyond any reasonable doubt) that his current popliteal cyst and knee pain were related to the incident in service. In contrast to the examiner’s notation of no evidence of recurring or persistent right knee pain from the time of the incident in 1992 until 2016, the Veteran has testified to, and submitted numerous letters in support of, his claim that he has had continuous right knee problems since the conceded right knee injury. In a February 2016 letter, the Veteran’s mother noted her son reporting having injured his knee in 1992 and of having complained of right knee pain since the time of the injury. In a July 2017 letter, J. J. indicated that he and the Veteran had been roommates from 1995 to 1997 and that the Veteran would complain about his right knee. He stated he had spoken with the Veteran on several occasions and the Veteran indicated that his knee had gotten worse over time and that he would probably need surgery. In a July 2017 letter, J. F. indicated that he and the Veteran were stationed together in 1997-98. He noted that he used to kid the Veteran about his knee issues. He stated that after training, the Veteran’s knee would hurt and swell for days. He indicated that after their release, they went hunting and the Veteran complained about his knee and stated he thought he would have to get it repaired. In a June 2020 letter, D. C. indicated he had known the Veteran since grade school. He stated that after the Veteran separated from the Air Force in 1999, they would go hunting. He observed the Veteran limping and the Veteran always complained about his knee. He stated that he had noticed the Veteran’s knee becoming worse over the years. In a June 2020 letter, the Veteran’s wife indicated that they had met in 2001 and married in 2002. She stated that he had continuously complained of right knee pain over the past 19 years. She indicated that the right knee pain had worsened and become more frequent over the years. In a June 2020 letter, D. S. indicated that he had been friends with the Veteran since 2010. He noted that the Veteran had had right knee problems throughout the years that they had been friends. In a June 2020 letter, A. C. M. indicated that she and the Veteran had been friends for 20 years. She stated that he had complained of right knee pain during that time. She also noted that he would limp when having pain. At his July 2020 hearing, the Veteran testified as to having injured his knee in service and of having had problems with his knee since that time. He reported self-medicating with Ibuprofen. He indicated that he just really put up with the pain until his surgery. Following a review of all the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, his current right knee disorder is related to his period of service. Although the VA examiner found that it was less likely that the Veteran's right knee disorder was related to his period of service, he did note that it had been conceded that the Veteran’s right knee had been injured in service. While it is true that there were no findings of a right knee disorder during service, the Veteran has testified to, and has submitted numerous statements in support of his claim that the injured his right knee during a nighttime training exercises, which is supported by the duties required by his MOS. Moreover, while the VA examiner cited to the Veteran having served his full 7 remaining years in service without incident coupled with the fact that there was no evidence of recurring or persistent right knee pain from the time of the incident in 1992 until 2016 (a total of 24 years), the Veteran has submitted many statements in support of his claim. These statements not only note the Veteran’s complaints of pain during service by fellow service members, but also provide a continuous line of symptomatology from the time of the initial injury to the present day. Given the Veteran’s current right knee disorder; his credible testimony of symptoms of right knee problems in service and since service; and the numerous statements received noting his inservice injury and complaints of right knee problems in service and since service, reasonable doubt must be resolved in favor of the appellant. As such, service connection is warranted for a right knee disorder. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.