Citation Nr: 21028212 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-40 198 DATE: May 10, 2021 ORDER Service connection for treatment purposes only under 38 U.S.C. § Chapter 17 for a right knee disability is granted. FINDING OF FACT The evidence is a least in equipoise as to whether the Veteran has had a continuity of symptomology of right knee pain since service. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee disability for treatment purposes only under 38 U.S.C. Chapter 17 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.360. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge at an August 2019 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board remanded in October 2019, for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. As acknowledged in the October 2019 remand, the veteran's representative, though not accredited by VA, is representing the veteran under the provisions of 38 C.F.R. § 14.630. The Board acknowledges that one of the March 2021 VA letters that notifies the Veteran and his representative that the appeal has been returned to the Board and has resumed its place on the docket appears to have been returned as undelivered. The undeliverable March 2021 VA letter appears to have been the letter that was mailed to the Veteran's representative. All this said, given the favorable outcome of this appeal, the Board finds that this is not prejudicial to the Veteran and will proceed with the appeal. The Veteran served on active duty in the United States Navy from July 1978 to May 1980. Procedural History In a December 1980 Administrative Decision, it was held that the Veteran's period of service in the Navy was under dishonorable conditions, barring all Veteran Administration benefits, other than excepted insurance rights if any. It was noted though that he is still entitled to healthcare under Chapter 17 of Title 38, USC for any disabilities determined to be service connected. In November 2004 the VA acknowledged the previous decision and confirmed that the Veteran's military service does not entitle him to VA benefits. However, VA clearly stated that the Veteran may be eligible for treatment at a VA hospital. In May 2014 the Veteran's representative filed an informal claim regarding the Veteran's injury to his leg. In a letter dated May 19, 2014 VA acknowledged receipt of such informal claim and explained that the Veteran has a year from the date of the letter to submit a formal claim on the prescribed, enclosed form. On May 18, 2015 the Veteran submitted a formal claim for his right knee/leg injury. In June 2015 VA denied the claim, specifically addressing the Veteran's service and deeming it not honorable for VA purposes. This was timely appealed, and in the October 2019 remand the Board clarified that throughout the pursuit of this appeal, the Veteran characterized his claim as both seeking to appeal his entitlement to the payment of VA benefits, as well as his entitlement to receive treatment under 38 U.S.C. Chapter 17 for service-connected disabilities. As the formal claim was filed within the prescribed time, the Board finds that the appeal period commences May 2014. Legal Criteria Health care and related benefits authorized by Chapter 17 of title 38 U.S.C. shall be provided to certain former servicepersons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360(a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360 (b). Although the Veteran has been found to have willful and persistent misconduct pursuant to 38 C.F.R. § 3.12 (d)(4), he has not been found to have any of the bars listed in 38 C.F.R. § 3.12(c) due to his other than honorable discharge. As such, he is still be eligible for medical treatment for a current disability that is found to have been incurred or aggravated in his active duty service. In making determinations of health-care eligibility, the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360(c). Arthritis is considered a chronic disease. See 38 C.F.R. § 3.309(a). Thus, service connection may be based on credible evidence of continuity of symptomatology alone under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Contentions During the August 2019 hearing, the Veteran described injuring his right knee/leg when he slipped and fell down a ladder when he was in service. After the fall his leg was very swollen and he experienced a lot of pain and received ongoing treatment in service, to include receiving a soft cast, a hard cast, and crutches. He testified that post service he still experienced pain in his knee and described that his knee would lock, buckle, and pop at times. He testified that shortly after service he was diagnosed with arthritis in his right knee. Evidence A review of the record indicates that the Veteran underwent surgery for his right knee and has been diagnosed with traumatic arthritis. The Board is cognizant of the fact that most of the medical evidence of record is dated outside of the appeal period. However, given the Veteran's competent, detailed, and probative testimony regarding the symptoms he has experienced and continues to experience, the Board finds that there is a current diagnosis of traumatic arthritis of the right knee. Also, of note, there is a June 2016 VA treatment record (which falls well within the appeal period) that illustrates complaints of and treatment for right knee pain. The December 2019 PIES response shows that a request was made to secure all outstanding service treatment records and military personnel records and that all available records were associated with the claims file. The separation examination is now part of the record. The Board recognizes that there is now an entrance examination of record, dated May 1978. Unfortunately, the Board will not be able to consider this examination as it is not credible. Although it reflects the correct identification number for the Veteran, it clearly lists the name of another veteran, along with the signature of the other veteran. As such, there is no credible entrance examination of record and therefore the Veteran is presumed to be healthy upon entrance. An October 2020 VA letter to the Veteran shows that attempts were made to locate VA medical treatment records, but that the VA responded stating that there were no records dated from May 1980 to January 2003. By way of a an October 2020 email, a VA medical doctor provided an opinion, stating that it is less likely than not that the Veteran's in-service complaints of and treatment of the right knee were the initial manifestation of the currently diagnosed right knee disability. The rationale was based on the lack of documentation until eight years post service and lack of documentation showing chronicity since active duty service. Analysis It is not in dispute that the Veteran injured his right knee in service. Service treatment records dated February 1979 and March 1979 illustrate that the Veteran twisted his right knee, sustaining trauma to the knee, requiring treatment in service. As there is a current disability and an in-service event, the question is whether the two of these are related. The Board notes that the Veteran is competent to provide lay evidence of his symptomatology, to the extent his symptoms are directly observable by him and do not require specialized medical or other training to describe. 38 C.F.R. § 3.159(a) (2); see Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board finds the Veteran a credible reporter of the onset of his right knee disability symptoms and accords considerable weight to the statements and testimony he provided. Jandreau v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). On review of the evidence of record, the Board finds that a right knee disability is shown to be caused by in-service events. In other words, service connection for right knee disability is warranted. There is one medical opinion of record, negative. The Board does not place high probative value on this opinion, as it relies on negative evidence. As stated above, there are service treatment records that document complaints of and treatment for right knee pain related to the in-service injury. Further, VA treatment records show that the Veteran continued to complain of and seek treatment for the same symptoms during the applicable presumptive period, and for years after. The Veteran has competently and consistently indicated that he has experienced right knee pain since the documented in-service fall. The Board finds that the Veteran's statements as to the long-standing nature of his disability symptoms present a continuity of symptomatology. Given that the Veteran's right knee disability is a form of arthritis, this continuity of symptomatology serves as the necessary nexus between the Veteran's current right knee disability and his active duty service. Resolving reasonable doubt in favor of the Veteran, the Board finds entitlement to service connection for VA treatment purposes only for right knee disability is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.