Citation Nr: 21025447 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-25 988 DATE: April 28, 2021 ORDER Entitlement to service connection for a left knee disability, to include osteoarthritis and arthralgia of this joint, is granted. FINDING OF FACT Resolving reasonable doubt, the Veteran’s left knee disability is due to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to November 2008. This current appeal arose from a May 2015 rating decision. In October 2018, the Board reopened the finally disallowed claim of entitlement to service connection for a left knee disability and remanded the reopened claim for further evidentiary development. Service connection for left knee disability The Veteran seeks entitlement to service connection for a left knee disability. The evidence of the record establishes that he has a current diagnosis of a left knee disability. He has been diagnosed with mild osteoarthritis of his left knee. See June 2016 VA Medical Treatment Record; August 2019 VA Examination Report. A review of VA treatment records show that he has also been assessed to have knee pain or arthralgia. See February 2015 VA Treatment Records (CAPRI). A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Regarding an in-service injury or event, the Veteran asserts that he experienced left knee pain following a landing while parachute jumping during his service. Service records establish that he did indeed engage in parachute jumping during his service and that he had reported experiencing “knee trouble” as a result of his jumps. See March 2008 Report of Medical History. (Service treatment records also document complaints of, diagnosis of, and treatment for, his right knee as a result of a landing injury.) Alternatively, the Veteran asserts that his left knee disability was caused, or aggravated, by his service-connected right knee disability. Specifically, he contends that, due to compensating for his right knee problems, he has now developed a left knee disability. Regarding the nexus element of this service connection claim, the August 2019 VA examiner opined that it was less likely than not that the Veteran’s left knee condition was due to his service. The examiner stated that there was no objective evidence existing in his service treatment records supporting the subjective claim. The examiner acknowledged the prior examinations and stated that those examiners did not opine that the Veteran’s left knee condition was due to his service. The current examiner continued that the Veteran’s left knee osteoarthritis was only developed and confirmed by X rays in May 2014, more than five years after leaving service. This examiner also stated that X rays of the Veteran’s knees conducted during his last year in the Army were negative for osteoarthritis. As to the matter of secondary service connection, the current examiner opined that it was less likely than not that the Veteran’s left knee condition was proximately due, or aggravated by, his service-connected right knee condition. The examiner again indicated that there was no objective evidence existing in the medical records to support the nexus. The examiner also stated that the weight of medical literature did not support a finding that osteoarthritis or meniscal and retinacular tears of one joint would adversely affect or cause osteoarthritis of the opposite joint. The examiner does not adequately resolve the necessary questions in this matter. The examiner relies on the absence of medical documentation for the basis of the opinions and does not address whether the Veteran’s physical activity in service contributed in any way to the development of his left knee condition. The examiner includes the Veteran’s assertions on the report, but does not specifically consider and address those assertions when rendering the opinion. Moreover, the examiner does not address the medical records prior to 2014 documenting the Veteran’s knee pain and being assessed to have knee pain or arthralgia. As to secondary service connection, the examiner does not address causation and aggravation separately. In Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018), the United States Court of Appeals for Veterans Claims emphasized that the facts that aggravation is independent of causation—and that the Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion regarding aggravation. Furthermore, the examiner does not specifically address the Veteran’s contention that his right knee condition caused him to overcompensate, which resulted in his current left knee condition. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). As arthritis is considered a chronic disease under 38 C.F.R. §3.309 (a), service connection can be granted for this disease by establishing continuity of symptomatology. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection may be granted for any disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this current matter, the Veteran has continuously asserted experiencing left knee pain as a result of his physical activity, such as parachute jumping, during his service. As mentioned previously, he reported experiencing knee problems, including pain. The Board acknowledges that the service treatment records document his treatment for his right knee condition. Significantly, however, when he noted experiencing knee pain, he did not specifically state that he experienced only right knee pain. The Veteran officially separated from active duty in November 2008. In June 2008, he filed a claim for several conditions, including one of his knees. At a September 2008 VA examination, he reported experiencing pain in both knees due to his parachute jumps. At the time, the examiner stated there was no clinical diagnosis for either knees. However, the Veteran reported experiencing pain, stiffness, swelling, and lack of endurance and being limited in running and walking. Subsequent medical records document the Veteran’s complaints of left knee pain. He has always attributed his pain to his active service. Importantly, pain can be considered a disability if it is shown that the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2017). The Veteran’s statements as to onset and continuity of symptomatology regarding his left knee condition are credible. His statements have been consistent with each other, his service records, and his post-service treatment records. After a thorough consideration of the evidence of the record, in its totality, the Board finds that the evidence raises a reasonable doubt as to the initial onset of the Veteran’s left knee condition. The Veteran performed parachute jumping in service and noted generally experiencing knee pain. Before his official separation from service, he filed a claim for a bilateral knee condition. As stated before, his statements have remained consistent throughout this appeal. At his examinations and medical visits, he continuously asserted the onset of his left knee pain to be during his active service as a result of parachute jumping. Resolving reasonable doubt in favor of the Veteran, the Board determines that a nexus has been established between his left knee condition and his service. As the Board is awarding service connection on a direct basis, it is not necessary to address entitlement to service connection on a secondary basis (the lesser benefit as compared to direct service connection). Accordingly, the Board finds that the criteria for service connection for a left knee disability has been met and that entitlement to service connection is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.