Citation Nr: 21040519 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 17-25 439 DATE: July 5, 2021 ORDER Entitlement to service connection for a right knee condition is granted. FINDING OF FACT The Veteran's right knee condition is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1992 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran seeks service connection for a right knee disability which he contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of right knee strain. See July 2015 VA Knee Conditions examination. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain complaints of, and treatment for, right knee pain. Specifically of note are: a July 1994 treatment record indicating that in 1993 the Veteran was in a motor vehicle accident and stepped in a hole while carrying two 5 gallon water cans which caused instant right knee pain; a February 1995 treatment note indicating the Veteran had been experiencing right knee pain for the past 7 months; and a May 1995 treatment record indicating the Veteran had experienced lower back and knee pain for 14 months. The Board also notes the Veteran's private and VA treatment notes document that he has sought treatment for chronic right knee pain. In November 2014, the Veteran's wife submitted a lay statement where she noted that she married the Veteran a few months after he enlisted in the Marines. She further noted that after returning from his first deployment the Veteran could not sit or stand for long periods of time. She stated that the Veteran told her that he had injured his knee in a field training exercise. During his May 2020 Board hearing, the Veteran testified that his first knee injury in service was a small Humvee accident and his second injury was during a training in Okinawa, Japan, where he stepped in a hole in a hillside. The Veteran further testified that his knee has continued to bother him since his active duty service. The Veteran was initially provided with a July 2015 VA Knee Conditions examination. The examiner diagnosed the Veteran with right knee strain and noted the date of the diagnosis to be 1995, while the Veteran was in active duty service. During the examination, the Veteran reported that he injured his knee in service and has had chronic knee pain over the years which he treats with motrin. The examiner further noted that the Veteran experiences right knee pain, and that his pain is related to his currently diagnosed disability. However, the examiner opined that the Veteran's right knee condition was less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that the Veteran was seen a few times in service for right knee tendonitis and was treated with physical therapy and medication. Further, the examiner noted that the Veteran denied knee pain on his separation examination, which means the Veteran's pain was likely "acute and transitory and resolved while on active duty." In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The July 2015 VA examiner's opinion was based on a lack of evidence of chronicity of care. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the examiner did not discuss the Veteran's competent lay statements addressing his right knee pain from service to present day. Therefore, the medical opinion is based on a lack of review of the entire treatment record regarding the Veteran's right knee and is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing right knee pain, and that the pain was related to his current condition. The Board has considered the Veteran's and his wife's lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, his wife is competent to report what she directly observed. However, they are not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced right knee pain since his injury in service, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. (Continued on the next page) Given the evidence discussed above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's right knee disability is at least as likely as not etiologically related to his active duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current right knee disability is related to the in-service reports of, and treatment for, his right knee. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right knee disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.