Citation Nr: 1749080	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-31 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a left knee condition.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1985 to October 1988 and from September 1990 to November 1990, with additional service in the Army Reserves.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

With regard to the characterization of the issue on appeal, the Board notes that the RO denied service connection for a left knee disability in a September 1994 rating decision, which was not appealed.  However, in May 2009, the RO received the Veteran's service department records that had not been associated with his claims file when VA first decided the claim.  Under these circumstances, the September 1994 rating decision is not final, and the Board need not consider whether new and material evidence has been received.  See 38 C.F.R. § 3.156(c).

In March 2014 and August 2016, the Board remanded this matter for additional development.  


FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's currently diagnosed left knee condition had its onset during a period of active duty.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for a left knee condition have been met.  38 U.S.C.A §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

As the Board's decision to grant entitlement to service connection for a left knee condition is fully favorable, no further action is required to comply with the VCAA and implementing regulations with respect to that issue.

II. Service Connection

The Veteran contends that service connection for a left knee condition is warranted because he was initially diagnosed with a left knee condition during active service and has experienced recurrent symptoms until the present day.

A. Legal Criteria

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which the claim is denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Factual Background

Service treatment records from the Veteran's first period of active service from June 1985 to October 1988 are silent for a left knee condition.  There is no separation examination of record.  

Personnel records show that the Veteran joined the Army Reserves in September 1989 and that he was assigned to the 479 Ordnance Company in Mississippi.  A January 1990 quadrennial examination report shows that the Veteran denied a "trick" or locked knee, and the Veteran's lower extremities were evaluated as clinically normal.  

A permanent order dated on September 18, 1990, reflects that the Veteran's unit and its members were ordered to active duty for a period of 90 days beginning on September 20, 1990.  The order also shows that the Veteran's unit was ordered to report to the mobilization station at Fort Stewart, GA on September 23, 1990.  Attached to the order is a list of names, including the Veteran's name.

An October 1990 service treatment record from Fort Stewart, GA shows that the Veteran reported knee pain after a road march.  The Veteran was diagnosed with a possible tumor in the left knee.  An October 1990 DA Form 3349 (Physical Profile) shows that the Veteran had a tumor in his left leg and the physician recommended release from active duty.  Another October 1990 service treatment record indicates that the Veteran was nondeployable.  An order dated on November 14, 1990, shows that the Veteran was released from active duty as of November 16, 1990, and that the Veteran was "non-deployable recommend medical evaluation/action."  

A December 1993 VA treatment record shows that the Veteran reported a three year history of left knee pain and weakness.  An x-ray showed a bone lesion in the medial tibial metastasis.  An April 1994 VA examiner diagnosed the Veteran with "probable benign lesion left proximal tibial."  

In September 1994, the RO denied entitlement to service connection for a left knee condition because no service treatment records were available for review.

A March 2008 VA treatment record shows that the Veteran reported knee pain.  X-rays showed a lucency at the proximal tibia.  The physician noted that the Veteran had an MRI in the past and that the "lesion has not changed."  

A May 2008 VA treatment record shows an assessment of neoplasm of the left tibia first noted in 1989.  A September 2008 VA treatment record shows that the Veteran reported knee pain since being in the Army in 1991.  On examination, the Veteran had a notable effusion.  The impression was left proximal tibia lesion, patellofemoral syndrome.  

A February 2009 VA treatment record shows that the Veteran underwent a biopsy of the lesion and that it was found to be benign.  Post-surgery, the Veteran had left lateral leg numbness.  

The Veteran was afforded a VA examination in August 2009.  He reported left knee pain since being in the service at which time he was told he had tumor.  The examiner diagnosed the Veteran with severe left patellar chondromalacia and benign left proximal tibia bone lesion.  The examiner opined that it was less likely as not that the Veteran's current complaints were due to any injury or work that occurred in service.  The examiner did not provide any rationale for these opinions.  

In September 2009, the RO denied entitlement to service connection.  The RO acknowledged that the Veteran was diagnosed with a tumor in October 1990; however, the RO found that the condition "manifested during a period of Reserve service and not a period of active duty."

VA treatment records from June 2011 show that the Veteran reported knee pain.  An x-ray showed a mixed density lesion in the medial aspect of the proximal tibia.

The Veteran was afforded a VA examination in May 2014.  He reported that he had a had a medial left knee mass that was removed after he left the service and that he continues to have pain that radiates up and down his leg from the surgical site along the medial aspect of his knee.  The examiner acknowledged that the Veteran had a knee mass removed and was having pain, but opined that the Veteran's currently diagnosed "knee mass" was less likely as not related to service because "[t]here is no connection to the mass and his service, and as such there is no service connection."

Pursuant to the Board's March 2014 remand directives, the AOJ obtained leave and earning statements in August 2014.  These records, which date from October 1989 to June 1992, do not reflect that the Veteran was paid for any active duty in September, October, or November 1990.

In March 2017, a VA examiner opined that the Veteran's left knee condition was not related to service because "there is no objective evidence showing that this
condition incurred in or was caused by an injury, illness, or event that occurred during active duty from 1985-1988."

C. Analysis

As an initial matter, the Board finds that the Veteran was on active duty from September 1990 to November 1990.  The Veteran's personnel records reflect that his Reserve unit was called to active duty at Fort Stewart, GA in September 1990.  Service treatment records from Fort Stewart dated from September 1990 to November 1990 corroborate a finding that the Veteran was at Fort Stewart.  Moreover, service treatment records show that after the Veteran's knee tumor was diagnosed in October 1990, it was recommend that he be released from active duty.  Subsequently, a November 1990 order shows that the Veteran was, in fact, released from active duty.  See 38 C.F.R. § 3.203(a) (2016).  Although leave and earning statements do not reflect that the Veteran was paid for active duty service, the Board finds the evidence is in relative equipoise that the Veteran was on active duty from September 1990 to November 1990.  

Turning now to the elements of service connection, the Veteran was diagnosed with a left knee lesion in April 1994 and March 2008.  As such, the Board finds the current disability element is established.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The Veteran was first diagnosed with a knee lesion in October 1990, during a period of active.  As noted above, there is no indication in the evidence of record that the Veteran had such a diagnosis prior to the 1990 period of active duty.  The Veteran denied any knee symptoms during a January 1990 periodic examination, and his lower extremities were evaluated as clinically normal.  Accordingly, the second Shedden element has also been satisfied.  

Moreover, the evidence clearly shows that the Veteran's knee condition, which first arose during active service, has persisted since active service.  In this regard, the Veteran sought care for knee pain in December 1993, just three years after service, where he was again diagnosed with a left knee tumor.  This diagnosis was confirmed by an April 1994 VA examiner.  More recent VA treatment records reflect that the Veteran reported onset of his symptoms during his 1990 active duty.  In March 2008 and June 2011, x-rays continued to show a left knee lesion.  As such, the Board finds that element (3) under Shedden, nexus, has been satisfied.

In so finding, the Board acknowledges the negative VA nexus opinions of record.  However, the August 2009 and May 2014 VA examiners offered no rationale to support their opinions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof).  The March 2017 examiner acknowledged that the Veteran was diagnosed with a knee mass and continued to have pain, but nonetheless proffered a negative nexus opinion based on an erroneous conclusion that the Veteran's only period of active duty ended in 1988.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  Accordingly, the Board affords the opinions no probative weight.

In sum, the Board concludes that entitlement to service connection for a left knee condition is warranted because the evidence of record shows that a left knee condition had its onset during a period of active duty and has persisted since service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.


ORDER

Entitlement to service connection for a left knee condition is granted.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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