Citation Nr: 0002793 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 91-38 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from September 1974 to September 1978. This appeal to the Board of Veterans' Appeals (Board) arises from the June 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for bilateral knee disabilities. A hearing was held on July 13, 1992, in Washington, D.C., before the member of the Board rendering the determination in this claim. When the case was previously before the Board in November 1992, March 1995, and February 1998, it was remanded for further evidentiary and procedural development. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The record reflects a current diagnosis of degenerative arthritis of both knees with radiographic evidence of bilateral tibial tubercle fragmentation. 3. Service medical records reflect knee injuries. 4. The evidence is in equipoise as to whether the veteran's degenerative arthritis of the knees is the result of injuries incurred in service. CONCLUSION OF LAW The grant of service connection is warranted for bilateral degenerative arthritis of the knees. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records show the veteran was seen in April 1975 with complaints referable to the knee. He reported an injury while wrestling 24 hours earlier. There was no point tenderness at that time and the veteran had full range of motion. He was released to active duty. When he was seen in July 1975 for small swelling on the right knee, the veteran reported having fallen from a building two weeks earlier. Again, there was no tenderness. The assessment was deep bursa. Records dated in March 1977 reflect complaints of low back pain of two to three years duration since boot camp. The veteran also noted radiation of pain down the right leg to the knee. X-rays were within normal limits. The assessment was right leg sciatica and low back pain on the right, recurrent. A complaint of right knee pain was noted in August 1977. In December 1977 the veteran was seen again with complaints of painless swelling and popping in the right knee. The symptoms were related to exercise. Reportedly the veteran had traumatized the knee in a fall, five months earlier. No symptoms were evident when seen by the examiner, with the exception of crepitus in the knee. The report of the veteran's July 1978 physical examination for separation from service reflects no pertinent complaints and no abnormalities of the lower extremities were noted on clinical evaluation. VA hospital records dated in February 1984 reflect that the veteran was admitted to the neurology service with numerous complaints referable to the right side, to include episodes of right knee buckling. Tests revealed mild L5-S1 radiculopathy on the right. The report of a VA examination conducted in February 1984 during the veteran's hospitalization indicates that right knee extension was 30 degrees to zero degrees with pain down the foot and hyperesthesia to pin prick in the right S1 dermatome. The impression was mild sensory radiculopathy of the right S1 root. On VA examination conducted in August 1985, the veteran's complaints included right knee pain. X-rays revealed minimal hypertrophic changes in the patellofemoral area. The pertinent impression was chondromalacia patellae, right knee. The veteran was hospitalized at a VA Medical Center (VAMC) in November 1986 to December 1986 with multiple complaints including right hip pain radiating to the right leg. Motor examination showed 5/5 muscle strength with some give way weakness in the right lower extremity due to pain. Private medical records dated in October 1987 to January 1988 and signed by C.H. Oliver, M.D., reflect that the veteran was seen complaining of stiffness in the back, neck and multiple joints to include the knees, but without any local reported swollen joints in the periphery. The symptoms were reportedly worse in cold weather and after exercise. The veteran walked slowly with a cane and noted pain on walking. There was mild crepitus in the right knee, which was not present on the left side. VA outpatient treatment records dated in April 1988 reflect that when the veteran was seen in the neurology clinic he complained of bilateral knee pain, especially after exercise, with no swelling or tenderness. The impression was questionable local disease of the knees. The veteran testified at his personal hearing before the Board in July 1992. At that time he related that he first injured his right knee in 1977 when he fell from a building, landing on his knees. He was treated by a corpsman who advised the veteran he had bruised his knees, and to take a hot shower, relax and keep off his feet. The veteran reportedly reinjured the knee in a subsequent fall while running for physical fitness performance tests. At that time he continued to run until he had completed his 3 mile course, after finishing his knee swelled "into a football." He was again seen by a corpsman with the same recommendations. The veteran recalled still another injury which occurred while he was wrestling. He was treated with ice and Tylenol for acute pain. The veteran testified that he continued to be bothered with knee symptoms during the remainder of his active service, but was not seen in sick call. He decided to simply follow the corpsman's advice to take a hot shower and stay off his knees. The veteran reportedly bruised his left knee in 1975. He said that fluid was drained from the knee at that time. Subsequent left knee symptoms were treated by the veteran himself according to the advise given him by the corpsmen. Reportedly he continued to have sharp pain in both knees, most of the time, which increased with activity. After service the veteran continued self treatment until his knee pain reportedly became so excruciating that his knees gave way from the pain. The veteran bought a cane to stabilize himself. He first sought medical attention in 1985 at a VA Medical Center (VAMC). He was issued knee braces by VA, which he is only able to use in cool weather due to swelling of his legs in warm temperatures and the development of phlebitis. At the time of the hearing the veteran described the pain in his knees as sharp and deep. He experienced giving way about once a week in the right knee only. He had fallen many times although he used a cane. Stiffness affected both knees. The veteran reported he was able to walk approximately one block without resting, but was unable to negotiate stairs at all. He indicated that his symptoms had been steady and progressive since separation from service. With regard to his physical examination on separation from service the veteran indicated there was no specific evaluation of his knees at that time. A magnetic resonance imaging spectroscopy (MRI) report dated in December 1993 reflects a small abnormality considered to possibly represent degenerative right meniscus, and a small subchondral cyst involving the medial femoral condyle. When the veteran was seen in the VA orthopedic clinic in January 1994 and May 1994 it was noted he had a degenerative meniscus on the right, along with right lumbar radiculopathy, and severe problems with instability resulting in falls. The veteran wore a brace on the right and ambulated with a cane. The assessment was anterior knee pain. Progress notes dated in June 1994 indicate the veteran was assigned to rehabilitation medicine for chronic low back pain and degenerative joint disease of the right knee. At that time he ambulated with forearm crutches and a Swedish knee cage on the right knee. He exhibited a stiff gait and complained of constant pain. Also of record is a statement signed by the veteran's VA treating physician, the Assistant Chief of the Neurology Service, and dated in August 1994 which reflects that the veteran had been seen for several years in the neurology, rheumatology, and orthopedic clinics of the VA Medical Center (VAMC), for multiple complaints including fatigue, muscles aches, generalized arthralgias, and back and knee pain which had resulted in severely decreased mobility, requiring arm crutches and knee and leg braces for ambulation. The veteran had been unable to sit, stand or walk for more than a few minutes at a time, and could not bend, lift, push, pull, squat or kneel at all. Clinical records dated in July 1995 reflect treatment in the VA neurology clinic for complaints including chronic pain in the low back and right knee. The impression at that time was polymyalgia/polyarthritis (fibromyalgia syndrome). When the veteran was seen in the VA orthopedic clinic in July 1996 multiple joint pains continued unchanged with the veteran presenting with a lumbosacral corset, crutches and knee braces. The report of the VA examination conducted in April 1999 reflects the examiner's notation that the claims folder had been reviewed. The veteran complained of constant sharp, pains in both knees, which even awakened him several times during the night. He also reportedly experienced swelling, buckling, and associated stiffness. The right knee was more symptomatic than the left. The veteran used Tylenol, for pain as well as heat, braces, crutches and a wheelchair. He also did quadriceps strengthening exercises. It was recorded that in November 1998 he had undergone arthroscopic chondroplasty of the right patella, with lateral retinacular release, medial reefing, and an open distal patellar realignment. The veteran indicated that these procedures had relieved approximately 50 percent of his pain. However, it was also recorded that his symptoms were progressively worsening. He reported a history of the onset of symptoms in 1977 after falling 15 feet from a building. Approximately one year later he fell again striking both knees on rocks. The veteran said that following the second accident he ran three miles with the result that he developed swelling. On objective examination the veteran presented in a wheelchair. He stood and walked with difficulty using elbow crutches. The right tibial tubercle was prominent, with well-healed surgical scars. There was mild to moderate effusion in the right suprapatellar area. Diffuse tenderness was noted in both knees, more on the right. There was also marked thigh muscle atrophy on the right. There was no instability. Range of motion was painful. Motion was limited by pain on the right side to 100 degrees flexion to near complete extension. The veteran had motion on the left side ranging from full extension to 120 degrees flexion. Weakness of the thigh muscles was considered probably to be associated with pain in his knee joints. X-rays revealed bilateral tibial tubercle fragmentation with retained screw fixation devices, in the right tibial plateau. The impression was degenerative arthritis both knees. The examiner opined that the veteran did damage to the knee cartilages in his falls, while on active duty. The doctor stated that the condition had "persisted over the years, and, his present state may be due to developing degenerative changes. These however are not yet evident on x-ray." In the examiner's opinion the veteran's service-connected back disability had not caused or aggravated his knee disorders. In a statement signed in April 1999, the veteran's private medical doctor, Thomas J. Harries, M.D., related that the veteran had presented to him in August 1998 with a 20 year history of instability in the knees, dating back to injuries in service in the 1970's. It was thought that the veteran's problem was patellofemoral subluxation, and he underwent patella related-alignment surgery which was initially very successful. Five months post surgery the veteran was beginning to report feelings of instability and pain with activity. The right knee having given way, buckling inward on a couple of occasions. On physical examination there was good healing of the osteotomy and no effusion or ligamentous laxity. Significant quadriceps atrophy was noted. It was considered that the etiology of the veteran's current problems may simply be atrophy and weakness. With regard to the causality of the overall problem, Dr. Harries noted that he had not reviewed the veteran's medical records from service. However when the veteran presented to the doctor he had some underlying patella mal-alignment which was significantly compromised by the bracing, atrophy, and weakness of his muscles for whatever cause that may be. Dr. Harries opined that there was certainly a significant contributory factor from the previous trauma to the right knee as well as the immobility and atrophy resulting from treatment that contributed to the veteran's current problem. Legal Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Certain specified chronic diseases, to include arthritis, shall be service- connected, although not manifest during service, if they become manifest to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). The threshold question to be answered is whether the veteran has met his burden of submitting evidence sufficient to justify a belief that his claim for service connection is well grounded. In order for him to meet this burden, the claimant must submit evidence sufficient to justify a belief that his claims are plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). A plausible or well grounded claim for service connection requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. The record in this case reflects a current diagnosis of degenerative arthritis of both knees and radiographic evidence of bilateral tibial tubercle fragmentation. Knee injuries are reflected in the veteran's service medical records. Additionally, the April 1999 VA examiner concluded after reviewing the veteran's medical record, that he had damaged his knee cartilages in the falls he sustained during service and the condition had persisted over the years, with his current condition possibly due to developing degenerative changes, not yet evident on x-rays. Thus the record reflects competent evidence of each of the elements of a plausible service connection claim, a medical diagnosis of a current disability, injury in service and a medical nexus between the current disorder and service. Therefore the veteran's claim is well-grounded. Turning to a merits review of the issue on appeal it is noted that despite the current evidence of degenerative arthritis there is no evidence that the condition was present during the period of one year following separation from service. Accordingly presumptive service connection is not for application in this case. However, the April 1999 VA examiner has clearly opined, based on review of the full medical file, that the current disabilities are etiologically related to damage sustained during active service. This conclusion is without contradiction in the record. Although the veteran's private medical doctor did not have access to the complete medical record, he concurred with the VA examiner to the extent that he concluded previous trauma, and the immobility and atrophy resulting from treatment, constituted a significant contributory factor in the veteran's current right knee condition. The law requires that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a veteran's claim, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, when the evidence is construed in the manner most favorable to the veteran, resolving doubt in his favor, the record supports service connection for bilateral knee disabilities. ORDER Service connection is granted for bilateral degenerative arthritis of the knees. G. H. SHUFELT Member, Board of Veterans' Appeals