Citation Nr: 21030789 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-44 147A DATE: May 19, 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 Veteran's left knee disability is at least as likely as not incurred during service. 2. The Veteran's right knee disability is at least as likely as not incurred during service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303 2. The criteria to establish entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has periods of active duty service from May 30, 1978 to August 21, 1978 and from September 6, 2004 to February 16, 2005. The Veteran also has periods of active duty for training (ACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in June 2018, at which point the claim was remanded for additional development. The most recent VA examination was performed in October 2020. While the Board finds that the October 2020 VA opinion is inadequate, remand is not warranted in light of the grant of service connection. During the pendency of the appeal, the Veteran was granted service connection for bilateral hearing loss in a November 2020 rating decision. Because this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Additionally, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease initially 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). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). "Active military, naval, or air service" includes active duty and any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). In the case of members of the Army National Guard or Air National Guard of any State, the term "ACDUTRA" means full time duty under section 316, 502, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 C.F.R. § 101 (22)(C). The term "in line of duty" means "an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct." 38 C.F.R. § 3.1 (m); see also 38 U.S.C. § 105 (a); 38 C.F.R. § 3.301 (a). Additionally, a service department finding that an injury occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1 (m). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a left knee disability. The Veteran maintains that his left knee disability manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for a left knee disability have been met. With respect to current disability, the Veteran was diagnosed by x-ray with osteoarthritis of the left knee in 2011. Two VA examiners confirmed this diagnosis in their examination reports from April 2012 and October 2020. Accordingly, the first element of service connection has been satisfied for a left knee disability. With regard to in-service incurrence, the Veteran maintains that he injured his left knee when he fell during a deployment in 2004 and he received treatment for it in 2005 after demobilizing. Consistent with his testimony, service treatment records (STRs) show that the Veteran was treated in January and March 2005 for left knee pain caused by a fall. Accordingly, the Board finds that in-service incurrence element for service connection of a left knee disability has been established. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current left knee disability. The record contains two negative opinions addressing a nexus. April 2012 and October 2020 VA examiners both concluded that the Veteran's current left knee disability is less likely than not caused by or a result of an event in military service. The examiners reasoned that there is no documentation of complaints between initial treatment in 2005 and when x-rays were taken and showed degenerative changes of the knees in 2011. Thus, the examiners concluded that the Veteran's knee pain in 2005 was transitory and resolved. Contrary to these opinions, the Veteran testified in February 2018 that he has had left knee pain since he sustained the injury in 2004. He elaborated that he has been careful to not trigger his pain by overexerting himself. However, he indicated that anytime he does more activity than usual, he has to ice his left knee. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303 (a); see also Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements. It is noteworthy that the Veteran sought care for left knee pain four months after the initial injury in 2004. At that time, he described the pain as constant and indicated that it got worse with weight bearing, exercise, and using stairs. This evidence contradicts the examiners' conclusion that the Veteran's pain was acute and transitory. Because neither VA examiner opinion addressed the Veteran's competent and credible lay statements regarding his continual symptoms since service, they are inadequate and have no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran is the most probative evidence of record. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran's current left knee disability. In sum, the weight of the evidence supports finding that the Veteran's left knee disability was incurred during his active service, and service connection is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.303 (a), (d). 2. Entitlement to service connection for a right knee disability. The Veteran maintains that his right knee disability also manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for a right knee disability have been met. With respect to current disability, the Veteran was diagnosed by x-ray with osteoarthritis of the right knee in 2011. Two VA examiners confirmed this diagnosis in their examination reports from April 2012 and October 2020. Accordingly, the first element of service connection has been satisfied for a right knee disability. With regard to in-service incurrence, the Veteran testified that he injured his right knee when he tripped over a stretcher during a training exercise in 2009. Consistent with the Veteran's reports, STRs indicate that the Veteran was treated numerous occasions in June 2009 for right knee pain caused by the fall. While military personnel records do not document active duty service in 2009, STRs include a line of duty determination from July 2009, which indicates that the Veteran's injury occurred while engaged in training on Title 32 orders. This determination is binding on VA and demonstrates that the Veteran was on ACDUTRA at the time of the injury. See 38 C.F.R. § 3.1 (m), see also 38 C.F.R. § 101 (22) (C). Accordingly, the Board finds that the injury occurred during active service and the in-service incurrence element for service connection of a right knee disability has been established. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current right knee disability. The record contains two negative opinions addressing a nexus. In April 2012, a VA examiner concluded that the Veteran's current right knee disability is less likely than not caused by or a result of an event in military service. The examiner reasoned that there is no documentation of complaints between initial treatment in 2009 and when x-rays were taken and showed degenerative changes of the knees in 2011. Thus, the examiner concluded that the Veteran's right knee pain in 2009 was transitory and resolved. Contrary to this opinion, the Veteran told the examiner that he has had right knee pain since he injured it in 2009. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d at 1377. Moreover, the Board finds no reason to doubt the credibility of the Veteran's statement. The Veteran also testified to having right knee pain since injuring it in 2009, but he indicated that treatment for his right shoulder took precedence because the pain was more severe. Consistent with his reports, records from 2009 through 2011 that are associated with treatment for his shoulder repeatedly document right knee pain. Because the VA examiner opinion failed to address the Veteran's competent and credible lay statements regarding his continual symptoms since service, it is inadequate and has no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). In October 2020, another VA examiner concluded that the Veteran's current right knee disability is less likely than not caused by or a result of an event in military service. This examiner concluded there is no objective evidence to support a direct nexus to active service because STRs are silent for right knee pain, injury, complaints, or diagnosis. The examiner based this conclusion on a finding that the Veteran did not have active duty service in 2009. However, as noted, STRs clearly demonstrate that the Veteran injured his right knee in the line of duty. Because this opinion is based on an inaccurate factual premise, it is inadequate and has no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran are highly probative in establishing a nexus. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his fdisbservice records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). In sum, the weight of the evidence supports finding that the Veteran's right knee disability was incurred during his active service, and service connection is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.303 (a), (d). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.