Citation Nr: 1510255 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 09-46 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to March 1968 and from April 1968 to October 1968. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) as a member of the Army Reserve, Naval Reserve, and Army National Guard of Texas. This appeal comes before the Board of Veterans' Appeals (Board) from January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that although the Veteran did not perfect an appeal of a March 2007 rating decision that denied service connection for bilateral knee disability, pertinent service treatment records were received after that decision so reconsideration of the claims on a de novo basis is in order. See 38 C.F.R. § 3.156(c). The Veteran and his spouse testified before a Decision Review Officer (DRO) of the RO in April 2012. A transcript of that hearing is of record. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's bilateral knee disability is due to trauma sustained during ACDUTRA and/or INACDUTRA. CONCLUSIONS OF LAW 1. The Veteran's right knee disability is due to injury incurred in active or inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6, 3.303 (2014). 2. The Veteran's left knee disability is due to injury incurred in active or inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, including notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for a bilateral knee disability. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2014). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6, 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis The Veteran contends that he developed his bilateral knee disability as result of injuries in training or exercises with the Army National Guard, during ACDUTRA and INACDUTRA. The Veteran's service records document his membership with the Army National Guard from March 1984 to May 1997. The Veteran had Naval Reserve service from May 1964 to October 1965, March 1968 to April 1968, and from December 1972 to July 1974. The Veteran served with the Air Force Reserve from October 1968 to May 1970. A December 1982 private treatment record indicates the Veteran had left knee pain. A January 1983 private treatment record notes the Veteran twisted his knee. An April 1990 service treatment record (STR) reflects the Veteran reported occasional left knee pain and that he was unable to run without pain. The STR indicates that a civilian doctor found osteoarthritis. According to an August 1990 private treatment record, the Veteran reported that he injured his left knee while playing football in June and was assessed with left knee strain. A related MRI of the left knee disclosed grade I and grade II intrameniscal signal, findings that were considered consistent with degenerative changes in the menisci. An October 1990 private treatment record notes complaints of bilateral knee pain. In connection with August 1991 private treatment, the Veteran reported pain under the knee cap and decreased physical activity except for what he needed to do in order to maintain fitness for the Army. The impression was persistent degenerative joint disease and degenerative meniscal disease. In a February 1991 letter to the Texas Rehabilitation Committee, Dr. D.B. reported that in July 1990 the Veteran landed on his left knee playing softball in the Army, the knee swelled, and he currently had intermittent pain, popping, difficulty extending, and trouble moving the knee. Dr. D.B.'s impression was early changes of chondromalacia secondary to wear and tear with nothing acute. In March 1992, Dr. M.S. noted that the Veteran was having problems with his knees and addressed a letter to the National Guard for exclusions from physical training due to degenerative joint disease in his knees. An April 1995 Air Force examination report notes mild left knee osteoarthritis. In a December 2004 Social Security Administration (SSA) Disability form, the Veteran reported that he began experiencing knee pain in 1994 and that his knees currently hurt if he stood for a long time. The SSA examiner noted the Veteran had difficulty standing and walked with a limp after the interview. March 2009 private hospital records indicate the Veteran underwent total knee arthroplasty for degenerative joint disease, osteoarthritis and varus deformity of the left knee. A July 2009 follow-up private treatment record notes an impression of right knee degenerative joint disease, osteoarthritis. In a November 2009 VA Form 9, the Veteran stated that he fell on his knees after his ankle gave out during physical training on a track during a period of ACDUTRA with the National Guard. He reported that he did not immediately seek treatment but was later told by a private physician that he needed knee replacement surgery. The Veteran submitted his orders to report to annual training for June 17, 1989, to July 1, 1989, and indicated that he injured his knees during that period of ACDUTRA. In December 2009, the Veteran reported that he fell and injured his knees during a two week period of ACDUTRA in June 1989. He stated that his ankle gave out while running on a track and he fell onto his knees, causing him to limp. The Veteran stated that he did not seek medical attention because it was towards the end of his training and he wanted to go home, but that he was unable to move his leg the next day due to pain. He reported that his roommate, T.B., followed him home from training to make sure he was okay and that he sought medical care from military medical staff when he reported for his regular monthly drill the following weekend. He indicated that the military doctors referred him to a civilian doctor who stated that his right knee was in bad shape and that he should not do physical activity for a long period of time. T.B., the Veteran's roommate during a two week annual tour in June 1989, reported that he did not see the Veteran fall but he saw the Veteran afterwards with red knees and a limp. T.B. stated that the Veteran's right knee appeared swollen and red the next morning and that he was having difficulty with the leg so he followed the Veteran home from their training. In a July 2013 VA examination, the Veteran reported experiencing knee pain during reserve duty summer camp in 1990. He stated that he was unable to run for a few days and has continued to have pain ever since. The VA examiner found it was at least as likely as not that the Veteran's bilateral knee disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated review of the Veteran's claims file and noted the Veteran's complaint in a March 1997 VA treatment record of sore knees while he was working in the National Guard. The examiner opined it was at least as likely as not that the Veteran suffered from bilateral knee disability that manifested as a result of injury that occurred in 1989 or 1990 based on the evidence of injury in service that caused knee pain that continued after separation from service. The examiner noted that the sore knees documented during National Guard service were consistent with the chronicity of the condition. In an August 2014 VA examination, the Veteran indicated onset of bilateral knee pain in the 1990s and that he failed a physical training test in the National Guard due to knee pain that worsened until a private treatment doctor indicated he should have a no running profile. The Veteran reported 31 years of service in the Reserves that included being activated for two weeks every year for training but that he was unable to recall the dates. He provided a medical history of right knee replacement surgery in 2009 and left knee replacement surgery in 2010. He stated that he stopped working as a janitor about ten years prior due to difficulty bending and squatting. The VA examiner noted that the DRO indicated the Veteran had knee pain during Reserve service and not active duty and did not provide an opinion as to the etiology of the Veteran's knee disorders. In a December 2014 VA addendum opinion, the examiner opined that the Veteran's knee disorders were less likely than not related to service because the Veteran's knee pain appeared to occur while working in the Reserves rather than on active duty. The examiner further explained that the damage from mechanical stress with insufficient self-repair by joints is believed to be the primary cause of osteoarthritis and that the stress may be from misaligned bones caused by congenital or pathogenic causes, mechanical injury, excess body weight, loss of strength in supporting muscles, or impaired peripheral nerves. The Board has carefully considered the Veteran and T.B.'s statements concerning bilateral knee injuries in service, the Veteran's documented history as reported for treatment purposes in 1990 through 1995 of bilateral knee pain, his current total knee replacements due to osteoarthritis, and the July 2013 VA opinion supportive of a causal nexus between the Veteran's knee injuries in ACDUTRA and INACDUTRA and current knee disabilities. The Board thus finds competent, credible evidence supporting injury during training exercises in ACDUTRA and INACDUTRA, current bilateral disability of the knees, and a causal link between the two, without significant evidence contrary to these positions. The Board acknowledges that the August 2014 VA examination report and December 2014 VA addendum opinion are against the claim. However, the Board finds the reports of little probative value because the August 2014 VA examiner provided no opinion on the etiology of the Veteran's knee disabilities and the December 2014 VA opinion fails to take into account service personnel records indicating periods of ACDUTRA in the Reserves. A VA examination report based on incomplete or inaccurate evidence of record is not probative evidence. The Board concludes that the evidence in favor of the claim is at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for right and left knee disabilities is warranted. ORDER Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs