Citation Nr: 21026247 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-08 697 DATE: April 30, 2021 ORDER Service connection for degenerative joint disease (DJD) of the left knee is granted. Service connection for DJD of the right knee is granted. FINDINGS OF FACT 1. The Veteran’s current left knee DJD is of service origin. 2. The Veteran’s current right knee DJD is of service origin. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative joint disease of the left knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113,1131,5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. Resolving reasonable doubt in favor of the veteran, the criteria for service connection for degenerative joint disease of the right knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113,1131,5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the Navy from September 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2015 Travel Board hearing. A copy of the hearing transcript has been associated with the record. In March 2016, the Board remanded the appeal for a VA examination to determine the nature and etiology of right and left knee disabilities. A VA examination was obtained in January 2017. The appeal was returned to the Board and both claims were denied in an October 2017 decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In April 2018, the Veteran’s representative and VA’s Office of General Counsel, representing the Secretary, filed a Joint Motion for Partial Remand (JMPR) to vacate the Board’s October 2017 decision and remand the claim for adjudication in compliance with the directives specified. The Court granted the JMPR in June 2018 and the appeal was remanded in February 2019 for a VA examination in compliance with prior remand directives. The matter was once again remanded in September 2020 for further development. The requested development was complied with and the matter is now ready for appellate review. 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 (2012); 38 C.F.R. § 3.303(a) (2020). 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) (2020). 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). Degenerative joint disease, or osteoarthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2020). Where a veteran served ninety days or more of active service, and certain chronic diseases, such arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.§§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2020). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1) (2020). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has contended that current right and left knee disabilities are related to an injury sustained during active service. VA treatment records and examinations of record reflect a current diagnosis of degenerative joint disease of the left and right knees. The Board finds that left and right knee disabilities were not "noted" at service entrance. While a May 1967 entrance examination shows the Veteran reported a history of injuring his bilateral knees in a February 1967 automobile accident, the Veteran's knees were found to be normal upon clinical evaluation, and therefore, the Board finds that there was no notation of a left or right knee disability upon service entrance. Accordingly, absent clear and unmistakable evidence showing that right and left knee disabilities both preexisted service and were not aggravated therein, the Board finds that the Veteran was presumed to be sound at service entrance with regard to his knee disabilities. Service treatment records reveal that the Veteran was seen in January 1968 with a notation of a right “trick” knee being reported. Right knee pain was again noted in April 1968. In July 1968, the Veteran was seen with complaints of pain in his right knee. A diagnosis of chondromalacia patella was rendered at that time. In October 1968, the Veteran was seen after sustaining an injury to his left knee. He reported having had his knee caught between a concrete block and a cable. A diagnosis of a contusion of the left knee was rendered at that time. In January 1969, the Veteran was noted to have chronic right knee problems. A diagnosis of chondromalacia patella was rendered at that time. In February 1969, the Veteran complained of right knee pain to the point that he could not sleep. At the time of the Veteran’s May 1969 service separation examination, normal findings were reported for the lower extremities. In June 1969, the Veteran was seen with complaints of pain at the dorsal aspect of his right knee. A diagnosis of chondromalacia patella was rendered at that time. At the time of an October 1970 VA examination, the Veteran was found to have no loss of motion for his right knee, with a normal x-ray finding being reported at that time. At the time of a January 1997 VA examination, the Veteran was noted to have had a history of a pedestrian accident in January 1967 (prior to time in service) at which time he injured both knees. The Veteran eventually recovered, noting that he did well and entered the service in September 1967. He stated that in or around 1968 when lowering a wire pennant (towing cable) it whipped and caused his left knee to be pinned between the cable and a concrete tube. He stated that he was taken to Sick Bay and was given Tylenol, bedrest, and instructed to use a cane for a day or two. The Veteran reported that he continued to complain of pain in the left knee and he was given pain medication intermittently. The examiner observed that the Veteran underwent an arthrogram while in service and it revealed a popliteal cyst and surgery was recommended but not performed. The Veteran was discharged in 1969 and continued under the care of his private doctor and Orthopedic Surgeon and he was treated with medication but no other specific interventions. X-rays of the left knee taken in August 1996 revealed mild degenerative changes with minimal spurring of the tibial spines and minimal medial joint compartment narrowing. The examiner rendered diagnoses of mild degenerative joint disease of the left knee and a history of left knee injury in 1969 with residual complaints of pain. At his November 2015 hearing, the Veteran testified as to the cable injury to his left knee in service. He indicated that he had had pain in his left knee continuously since the inservice accident/injury. The Veteran also noted having had right knee problems since his period of service. He further testified as to having received treatment for his knees at several VA facilities throughout the years. In a November 2020 opinion, the examiner opined that it was less likely as not that the Veteran’s right and left knee degenerative joint disease was related to disease, injury, or event in service. However, the examiner also opined that it was at least as likely as not that the Veteran had had continuous symptoms of left and right knee degenerative joint disease since service separation. The examiner noted that a review of evidence included pre-existing bilateral knee injuries prior to service from "being hit by car on the back of his knees", and found to have "internal bleeding to bilateral knees" and to be "in hospital for 18 days in traction." This was noted as part of the entrance examination and upon reporting for recruiting training. He was cleared for training physical with defect noted: Internal bleeding of both knees. The examiner stated that the Veteran was denied an aggravation claim. The examiner observed that all of the service treatment records that documented his "intermittent knee pain" documented the injury occurred in February 1967, prior to service, except for an acute left knee contusion that was documented to "not expected to result in disability." The examiner indicated that it was irrefutable and well documented on entrance exams that there was a significant bilateral knee injury dated 2/1967 with "internal bleeding" in both knees. The examiner noted that the Veteran saw Orthopedic MD in service, who again documented the injury had occurred prior to service and that his symptoms were presently asymptomatic but were intermittent. This was documented by the inservice orthopedist, due to the pre-existing condition, and not due to any injuries incurred in service. The examiner stated that it was conceded that the Veteran had intermittent pain since the pre-existing injury. He indicated that there were no new diagnoses documented to have persisted and no chronicity due to any injury incurred in service. While the examiner has indicated that the Veteran had a pre-existing injury prior to service, as noted above, the Board has found that the Veteran’s knees at service were noted to be normal and that the presumption of soundness has not been rebutted. The Board does observe that the Veteran was seen with right knee complaints on numerous occasions during service, to include reports of pain, and several diagnoses of chondromalacia patella. As to the left knee, the Veteran was noted to have sustained an injury to his left knee in service. He has also testified as to having had continuous problems with his left knee since that time. While the examiner has indicated that the Veteran’s current left and right knee disorders are related to a pre-existing injury, the Board notes that as a legal matter, the Veteran has been shown to be sound at time of his entry into service. The Board further observes that the Veteran had numerous complaints of pain and several diagnoses of chondromalacia of the right knee during service and that he sustained an injury to his left leg during service. The Veteran has also testified as to having had problems with his knees, to include pain, on a continuous basis since service. The Veteran has also reported and testified as to having received treatment at various VA facilities and through a private examiner throughout the years. These records have been found to be unavailable with all efforts having been exhausted to obtain those records. The Board finds the Veteran’s testimony credible as to having received treatment for his knee problems throughout the years. Moreover, the VA examiner opined that it was at least as likely as not that the Veteran had continuous symptoms of left and right knee degenerative joint disease since service separation. Given that there were no findings of a left or right knee disability upon service entrance resulting in the Veteran being presumed to be sound at service entrance with regard to his knee disabilities; the inservice notations of right and left knee problems in service, to include chondromalacia of the right knee and a left knee injury; the reports and testimony of the Veteran as to having had continuous symptoms since service; and the finding of the November 2020 VA examiner that it was at least as likely as not that the Veteran had continuous symptoms of left and right knee degenerative joint disease since service separation; and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s current right and left knee degenerative joint disease had its onset in and related to his period of service. As such, service connection is warranted for left and right knee degenerative joint disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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.