Citation Nr: 1761152
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-34 043 ) DATE
)
)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas

THE ISSUE

Entitlement to service connection for degenerative joint disease of the bilateral knees.

REPRESENTATION

Appellant represented by: Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

G. Jackson, Counsel
INTRODUCTION

The Veteran served on active duty from February 1975 to July 1976.

This matter initially came to the Board of Veterans’ Appeals (Board) on appeal, in part, from a rating decision issued in January 2009. The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in April 2011 and testified regarding the bilateral knee disorder claim. A transcript of the hearing is associated with the claims file.

In a January 2012 decision, the Board granted the reopening of the claim and remanded the appeal to the Agency of Original Jurisdiction (AOJ) for development. In a November 2012 decision, the Board denied the claim for service connection. In a July 2014 Memorandum decision, the United States Court of Appeals for Veterans Claims vacated the Board’s denial and remanded it to the Board for development consistent with that decision. In July 2015, the Board remanded for additional development.

In January 2017, the Board again denied the Veteran’s claim. The Veteran appealed this decision to the Court. In September 2017, the Court granted the parties Joint Motion for Remand (JMR) and vacated the Board’s January 2017 decision, and remanded the claim on appeal to the Board for further development and consideration.

VA has provided all appropriate notification and assistance to the appellant in the development of the claim. In light of the favorable decision with regard to the claim, no further discussion of the duties to assist and notify is necessary.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.

Finally, review of the claims file reveals that the AOJ is still taking action on the issues of entitlement to service connection for a bilateral hearing loss disability and whether new and material evidence has been received to reopen a claim for service connection for a right arm disorder with arthritis (claimed as a right shoulder disorder). Accordingly, the Board will not act on these claims at this time, but they will be the subject of a subsequent Board decision, if otherwise in order.

FINDING OF FACT

Symptoms of the degenerative joint disease of the bilateral knees had onset during the Veteran’s period of service.

CONCLUSION OF LAW

The criteria for service connection for degenerative joint disease of the bilateral knees are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection – Bilateral Knees

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, degenerative joint disease (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. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b),
3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, degenerative joint disease or arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable.

Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

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).

During his May 1976 pre-separation physical examination, the Veteran reported cramps in his legs and noted “occasional cramps in legs with strenuous exercise.” His service treatment records reflect that in June 1976, he complained of bilateral knee pain with an eight month history of intermittent pain. He did not recall any trauma to his knees. The Veteran was not examined by a physician. Instead, he was examined by a Specialist Six (Pay Grade E-6), who was apparently a medic. The non-commissioned officer noted that the Veteran had some laxity in the left knee on range of motion testing with intermittent crepitus. The examination was negative for heat or swelling and range of motion testing was performed without discomfort. The right knee appeared within normal limits. The Veteran’s service treatment records indicate that two days later, the same medic noted that the Veteran had similar complaints regarding the left knee. The impression was medial laxity, left knee. The Veteran returned to duty and was shortly thereafter discharged from active duty after completion of his service contract.

Subsequent to service, a September 1976 Report of VA examination reflects the Veteran’s complaint that his knees tired and ached and that they bothered him when he stood and pressed the gas pedal while driving. He did not recall any injury to the knees. Examination of the knees revealed them to be equal in size. There was no evidence of swelling or fluid. The patellae were not abnormally movable. There was no evidence of ligamentous damage. The knee joints were nontender. The Veteran could squat on his heels with ease. Flexion was at least 140 degrees bilaterally without crepitus. There were no physical findings of knee abnormalities. Based on the physical examination, the examiner reported no disease of the knee found at this examination.

The March 1977 Report of VA orthopedic examination reflects the Veteran’s chief complaint of “off and on” pain in both knees that was never severe. The Veteran could not recall any trauma to the knees. Physical examination revealed normal posture and gait. His knees were normal in appearance with no swelling and normal soft tissues. Stability was good and he had normal range of motion up to 145 degrees. There was no crepitation or tenderness. X-rays of the knees revealed no bone or soft tissue abnormalities. The examiner reported that the Veteran’s knees were normal.

In November 2006, the Veteran’s treating physician diagnosed osteoarthritis of the knee. Physical examination revealed mild crepitus in both knees, particularly in the left knee. A mild varus deformity was noted. A November 2006 x-ray taken of the bilateral knees was negative for evidence of fracture or subluxation. No bony, joint, or soft tissue abnormalities were identified. In August 2008, the treating physician diagnosed the Veteran with fibromyalgia. However, he also noted that the Veteran had pain in the knees, chest, elbows, neck and back.

A September 2009 private treatment record documents the Veteran’s complaint of pain in the left knee greater than in the right. Joint examination showed exostoses present in both knees. The Veteran also had fibromyalgia tender points. Pertinent diagnoses were osteoarthritis of the knees and fibromyalgia syndrome. In May 2010, the Veteran’s treating physician opined that the Veteran has “osteoarthritis of the knees which dated back to his service days in 1976.”

A July 2010 Report of VA examination documents the Veteran’s complaint of “knee problems since 1975.” The Veteran reported his knees ache all the time. There was no locking, giving way or instability but the Veteran had increasing pain because he had to be on his feet more than 30 minutes at a time and walked more than a quarter mile in his job at the VA. He complained of increasing difficulty ascending and descending stairs and reported that he had swelling in his knees maybe once per month (achiness was present all the time). There were no other signs of inflammation. He obtained relief with sitting and taking medication (hydrocodone or tramadol). Pain was worse after 30 minutes of being on his feet.

On examination, x-ray findings showed mild tricompartmental degenerative joint disease of the bilateral knees. Joint spaces were normal and there was no evidence of fracture. The diagnosis was mild chondromalacia in the bilateral knees. Based on review of the claims folder, the examiner opined that the Veteran’s knee disorder was less likely than not caused by or a result of injuries sustained in service. The examiner attributed the bilateral knee disorder to aging, attrition, and the Veteran being forty pounds overweight.

In a May 2011statement, the Veteran’s treating physician referenced findings from the Veteran’s service treatment records and opined, “it is therefore my impression that the patient has early knee osteoarthritis change which might be the continuum of whatever he was suffering from 1976 but just progresses through the years.”

An April 2011 statement from a VA staff physician notes that the Veteran was seen for left knee pain in service in June 1976, documented as medial laxity of the left knee. The Veteran reported a history of continued pain of both knees since discharge from service. The staff physician noted that examination showed medial laxity of both knees but that x-ray findings of the knees were normal. The staff physician opined that the Veteran’s “chronic pain both knees is more likely than not secondary to military service.”

The May 2012 Report of VA examination reflects the Veteran’s report that his bilateral knee pain onset in approximately 1975 with generalized aching pain and intermittent sharp shooting pains over the entire knee bilaterally. The Veteran complained of gradually worsening knee pain since his discharge from service in 1976. On examination the diagnosis was bilateral degenerative joint disease of the knees. Based on review of the Veteran’s claims file and physical examination, the examiner opined that it was less likely than not that the Veteran’s current bilateral knee disorder incurred in or was caused by the claimed-in-service injury, event, or illness. He reasoned that the Veteran has bilateral osteoarthritis of the knees, which was mild and consistent with his age. The examiner noted there was no x-ray evidence of osteoarthritis dating back to 1980 and the x-ray evidence from the April 2011 VA examination indicates the onset of the condition. The examiner indicated that the Veteran has no other knee disorders. He noted a MRI from 2003 indicates no internal derangements of the knees and no source for the Veteran’s chronic pain.

The examiner noted that the Veteran’s in-service treatment records were authored by a medic. The VA examiner explained that the medic was apparently not trained in the nuances of knee pathology, but was instead trained in first-aid and triage. He added the Veteran was not sent for evaluation by a physician or physician’s assistant, indicating that his problem was minor. The examiner did not find any current instability of the left knee as noted in the service treatment records. The examiner noted because no generalized pain disorders were treated during the Veteran’s service that a current diagnosis of fibromyalgia could not be related to the Veteran’s military service.

The April 2016 Report of VA examination reflects the Veteran’s report of pain in both knees dating back to his time in the service, attributed to prolonged standing and jumping. On examination, the diagnosis was bilateral degenerative arthritis.

The physician opined that the Veteran’s bilateral degenerative arthritis was not incurred in or caused by an in-service injury, event or illness. Noting review of the claims file, the physician noted that the current examination did not show laxity/instability in the knees. Radiographic studies documented mild degenerative arthritis in both knees in 2010 and the physician explained that the disparity between radiographic study interpretations probably relates to slightly different techniques employed in the x-ray studies. MRI studies showed no ligamentous lesions which would have resulted in laxity; therefore, the physician found that a diagnosis of medial laxity could not be confirmed based on current or previous MRI. The physician concluded that the degenerative arthritis was the result of aging and was not demonstrated until 2010. Observing that there was no medical evidence that degenerative arthritis was present during the Veteran’s period of service, the physician opined that it was less likely than not that the Veteran’s degenerative arthritis in the knees was incurred in or caused by military service.

The Board has considered the opinions of the VA examiners in July 2010, May 2012 April 2016. The VA examiners acknowledged the in-service complaints of bilateral knee pain but explained that the current bilateral degenerative arthritis was the result of aging, attrition, and the Veteran body habitus and did not onset during service.

However, in May 2010, April 2011 and May 2011 statements, the Veteran’s treating physicians and a VA staff physician concluded that the Veteran’s current arthritis of the knees represented a continuation of the symptoms he complained about during service and thereafter (“it is therefore my impression that the patient has early knee osteoarthritis change which might be the continuum of whatever he was suffering from 1976 but just progresses through the years.” – May 2011 statement). Although the “treating physician” rule which accords dispositive probative value to such an opinion is not applicable in VA law, it nonetheless requires that VA consider the physician’s opinion.

The treating and VA staff physician’s opinions are informed and responsive to this inquiry. Given the Veteran’s complaints of knee pain in service that continued subsequent to service, in light of the parties most recent JMR, the Board finds the evidence to be in relative equipoise in showing that the Veteran has current degenerative joint disease of the bilateral knees that had its clinical onset during his period of service. In such cases, reasonable doubt is resolved in the Veteran’s favor and service connection for degenerative joint disease of the bilateral knees is warranted.

The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress).

ORDER

Service connection for degenerative joint disease of the bilateral knees is granted.

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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