Citation Nr: 1008488 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-26 213A ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina
THE ISSUE
Entitlement to service connection for a left knee hyperextension injury.
ATTORNEY FOR THE BOARD
F. Yankey, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1983 to July 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
In August 2007, the Veteran filed a notice of disagreement with the September 2006 rating decision which granted service connection and a 10 percent evaluation for a cervical spine strain. In his September 2008 VA Form 9, the Veteran indicated that he was only appealing the issue of entitlement to service connection for a left knee hyperextension injury. He has not submitted a substantive appeal with regard to the issue of an increased rating for his service-connected cervical spine strain, and the issue has not been certified for appeal. Accordingly, the Board will not consider this issue.
A July 2008 rating decision granted service connection for thoracolumbar disc herniation, claimed as low back injury with right leg/foot numbness. This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997).
FINDING OF FACT
A current left knee disability, was incurred as the result of an injury during active military duty.
CONCLUSION OF LAW
A left knee disability was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating the claim.
Legal Criteria
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009).
"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
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Citation Nr: 1008488 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-26 213A ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina
THE ISSUE
Entitlement to service connection for a left knee hyperextension injury.
ATTORNEY FOR THE BOARD
F. Yankey, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1983 to July 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
In August 2007, the Veteran filed a notice of disagreement with the September 2006 rating decision which granted service connection and a 10 percent evaluation for a cervical spine strain. In his September 2008 VA Form 9, the Veteran indicated that he was only appealing the issue of entitlement to service connection for a left knee hyperextension injury. He has not submitted a substantive appeal with regard to the issue of an increased rating for his service-connected cervical spine strain, and the issue has not been certified for appeal. Accordingly, the Board will not consider this issue.
A July 2008 rating decision granted service connection for thoracolumbar disc herniation, claimed as low back injury with right leg/foot numbness. This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997).
FINDING OF FACT
A current left knee disability, was incurred as the result of an injury during active military duty.
CONCLUSION OF LAW
A left knee disability was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating the claim.
Legal Criteria
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009).
"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
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) (2009).
Analysis
The competent medical evidence of record shows that the Veteran has a current left knee disability. The Veteran was afforded a pre-discharge examination in April 2006. At that time, he reported an injury to his left knee during officer's candidate school as a result of hyperextending his left knee while running an obstacle course. He indicated that since his in-service injury, he had experienced recurring episodes of weakness, stiffness, swelling, giving way, lack of endurance and locking. He also complained of stiffness and soreness after prolonged exertion such as walking and climbing stairs; aggravation of his knee pain by running, jumping and walking; and stiffness and soreness in the knee after sitting for prolonged periods with his knees bent. The Veteran also complained of a grinding sensation in the left knee joint, elicited by hyperextension of the knee. Physical examination of the left knee revealed normal findings and the examiner concluded that there was no detectable pathology to render a diagnosis and that the Veteran's condition had resolved.
However, treatment records from Carteret Surgical Associates show that on examination in May 2007, the Veteran again reported that he sustained an injury to his left knee in officer training school in the Marines while going over an obstacle course, which resulted in posttraumatic large effusion. According to the Veteran, at the time of his injury, he was evaluated and told that he just sprained his knee and advised to keep going. The Veteran also reported that since his in-service injury, he had continued episodes of hyperextension and loss of neuromuscular control in the knee. After a physical examination, the Veteran was diagnosed with a left knee anterior cruciate ligament (ACL) deficiency. And more recently, on examination in June 2009, the examiner noted the Veteran's complaints of instability of the left knee with high-level athletic activities and turning, shifting and pivoting activities, going back to his time in officer candidate school. He also noted the Veteran's complaints of recurrent swelling and pain in the left knee. The examiner indicated that evidence from an MRI of the left knee revealed a complete tear of the Veteran's ACL, which appeared chronic, and a tear of the posterior horn of the medial meniscus. He also recommended that the Veteran undergo left knee diagnostic and operative arthroscopy with partial medial meniscectomy. Accordingly, the Board finds that the evidence is in favor of a finding that there is a current disability.
Service treatment records show that in August 2000, the Veteran was seen for complaints of left knee pain and limited flexibility, which started after running three weeks prior. On examination, there was full range of motion without pain and tenderness to palpation of the medial patellar. He was diagnosed with patellofemoral syndrome. In a May 2003 medical assessment, the Veteran reported a left knee injury during officer candidate school on the obstacle course, a reinjury to the knee during basic training and PT and subsequent injuries throughout his career of over 22 years. A June 2003 report of medical history, the Veteran indicated that he had a tricked or locked knee three times, and a November 2003 medical assessment notes that the Veteran hyperextended his knee three times in 1982 while running an obstacle course as an officer candidate, two times as a platoon commander in 1990 and numerous times during PT. In August 2004, the Veteran was seen for complaints of left knee pain and swelling from a hyperextension injury the day before while playing racquetball. Examination revealed effusion, patellar apprehension and positive vargus stress. Pain was noted with Drawer test, Lachman's test and McMurray's test. The assessment was possible meniscal injury. The Veteran's March 2006 separation examination also noted the Veteran's reported left knee injury.
The Veteran has submitted statements, contending that he has had left knee pain, swelling, soreness, weakness, instability, hyperextension and loss of control since he injured his left knee in service while running an obstacle course in officer's candidate school. See August 2007 notice of disagreement and September 2008 VA Form 9. Furthermore, as noted above, the contemporaneous medical evidence of record shows that as early as May 2007, less than one year after his discharge from service, the Veteran was diagnosed with a left knee disability. He was diagnosed with a left knee disability again in 2009. The Veteran's statements, along with the aforementioned medical evidence of record, provide competent evidence of a left knee injury during active duty and a continuity of symptoms since. They provide a sufficient basis for establishing service connection. Davidson, Jandreau, Barr. Resolving reasonable doubt in the appellant's favor, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002).
ORDER
Service connection for a left knee hyperextension injury is granted.
____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs