Citation Nr: 0737815 Decision Date: 11/30/07 Archive Date: 12/06/07 DOCKET NO. 05-09 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a knee disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from July 1950 to September 1951. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) and Board remand. By an August 2007 rating decision, the RO granted the veteran's claim for entitlement to a total disability rating based on individual unemployability. In light of the foregoing, no allegations of errors of fact or law remain for appellate consideration. The RO's August 2007 decision has fully resolved and rendered moot the claim. No exceptions to the mootness doctrine are present because the benefits sought on appeal have been granted without the need for action by the Board. See Thomas v. Brown, 9 Vet. App. 269, 270-71 (1996); see 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. § 20.101 (2007). FINDING OF FACT The evidence of record demonstrates that a knee disability is related to active service. CONCLUSION OF LAW A knee disability was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Because the claim on appeal is being granted in full, the notification and duty to assist provisions of the VCAA are deemed fully satisfied. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, degenerative joint disease may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection, the following must be shown: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran's service medical records were negative for any knee complaints, treatments, injuries, or diagnoses. A March 2005 VA radiology report diagnosed left knee osteoarthritis and calcification of the quadriceps and patellar tendon and right knee bipartite patella. There was not acute fracture or dislocation of either knee. At the July 2005 RO hearing, the veteran testified that he injured his knees during service when he fell over on ice and went down on both knees. The veteran stated that his unit was marching at that time and he didn't seek medical attention. He reported that after service discharge he treated his knees with Ben Gay. The veteran testified that he sought treatment for his knees through a private doctor after service discharge and received medication. In two separate October 2005 lay statements, two of the veteran's brothers asserted that upon the veteran's return, the veteran complained of an inservice knee injury. The veteran's brothers stated that the veteran took hot Epsom Salt baths for his knees, rubbed Ben Gay on his knees, and slept on the floor with a pillow between the knees to relieve the pain. In an October 2005 lay statement, another one of the veteran's brothers stated that after service the veteran had knee problems and it was understood that this was due to a fall while in Korea. The veteran's brother stated that the veteran slept on the floor and took long hot Epsom salt baths. In October 2005 and November 2005 lay statements, the veteran's cousin, stated that when the veteran returned from Korea, he had leg problems and slept on the floor for relief. A May 2007 VA general medical examination was conducted upon a review of the claims file. The veteran reported that during service, he was carrying a heavy backpack and fell and landed on both knees. He stated that he had to continue marching at that time. He reported current constant aching bilateral knee pain and intermittent swelling of the knees. Upon examination, there was bilateral knee patella deformity, flexion to 100 degrees, and extension to 0 degrees. There was no knee instability. The diagnosis was bilateral degenerative joint disease of the knees. The examiner noted that although service medical records were silent for any knee injury or complaint, taking into account the veteran's reported inservice incident and the current physical examination findings, it was at least as likely as not that the veteran's current knee disability was related to military service. The Board finds that the evidence of record supports service connection for a bilateral knee disorder. There is a currently diagnosed bilateral knee disability. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the service medical records are negative for any knee disorder, the Board finds that the preponderance of the evidence indicates inservice incurrence. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury). The veteran has stated that he injured his knees in service. See Caluza v. Brown, 7 Vet. App. 498, 504 (1995), aff'd by 78 F.3d 604 (Fed. Cir. 1996) (noting that where issue does not require medical expertise, lay testimony may suffice). The veteran, three of the veteran's brothers, and the veteran's cousin all testified that immediately after service discharge, the veteran complained of bilateral knee pain, slept on the floor with a pillow between his legs to relieve the pain, took long hot Epsom salt baths, and used Ben Gay on his knees. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent to establish pain or symptoms). Importantly, a VA examiner, upon a review of the claims file, concluded that due to the physical examination findings, it was just as likely as not that the veteran's current knee disability was related to active service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed in- service disease or injury and the current disability); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (noting that although the Board may not reject a medical opinion solely because it is based on facts reported by the veteran but may do so where the facts are inaccurate or are unsupported by the other evidence of record). Accordingly, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for a bilateral knee disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral knee disability is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs