Citation Nr: 0726867 Decision Date: 08/28/07 Archive Date: 09/04/07 DOCKET NO. 06-30 553 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to January 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania, which denied the claims. The veteran provided testimony at a hearing before the Board in June 2007, a transcript of which is of record. During the hearing, the veteran stated his intention to submit additional evidence and waive RO consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2006). The Board received the evidence and waiver in July 2007 and it will consider such evidence in the adjudication of this appeal. FINDING OF FACT The veteran has degenerative joint disease of the left and right knee that is related to his active service. CONCLUSIONS OF LAW 1. The veteran's degenerative joint disease of the left knee was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). 2. The veteran's degenerative joint disease of the right knee was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, for the reasons detailed below, the Board concludes that the veteran is entitled to the benefit sought on appeal. Accordingly, no further discussion is warranted as to either the duty to notify or assist because the veteran is not prejudiced by any deficiency on the part of VA in providing these duties. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). The veteran contends that he currently has a bilateral knee disability that is the result of injuries sustained during his active military service. Through written submissions and hearing testimony, the veteran specifically alleges that he injured both his left and right knee on several occasions while playing football in service. The veteran states that his knees have bothered him ever since the injuries in military service and he should be awarded service connection for the resulting disability. A review of the veteran's service medical records reveals a normal entrance examination. From July 1971 to October 1974, the veteran was treated on multiple occasions for injuries to his right and left knee. Treatment records show that the injuries were generally football-related and resulted in effusion, swelling, and painful joints. The veteran's August 1974 separation examination was normal although he complained of past swollen and painful joints and trick or locked knees. The Board notes that, in October 1974, the veteran again injured his left knee playing football subsequent to the separation examination but prior to being discharged from active service. Post-service medical records from J.G.F., M.D. and W.C.B., M.D. consistently document that the veteran suffers from degenerative joint disease of the left and right knee. The records also show that the veteran likely has psoriatic or rheumatoid arthritis of multiple joints, including both knees. Although the veteran has current left and right knee disability and there is evidence of injuries to the knees during active military service, there still must be competent medical nexus evidence that links the current disability to the in-service injuries. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regarding medical nexus evidence, the veteran submitted several medical opinions from Dr. W.C.B. In a September 2005 record, Dr. W.C.B. noted the veteran's self-reported history of football injuries during military service in the 1970s. Dr. W.C.B stated that the veteran's current degenerative joint disease of the knees may well have been posttraumatic in nature and potentially a result of the injuries sustained in the early 1970s. In August 2006, Dr. W.C.B. reported that it was quite clear that the veteran's degenerative joint disease was posttraumatic in nature. He gave an opinion that there was no question that the degenerative arthritis was from the injury sustained in the Armed Services. Dr. W.C.B. provided another nexus opinion in September 2006. On this occasion, Dr. W.C.B. reported that he had reviewed the veteran's service medical records in which he found sustained significant injuries to the bilateral knees during the participation in football. Dr. W.C.B. stated that the premature end-stage degenerative arthritis experienced by the veteran was a direct result of the previous football knee injuries sustained in service. The Board finds Dr. W.C.B.'s opinions to be probative of the relationship between the veteran's current degenerative joint disease of the left and right knee and his knee injuries that occurred during military service while playing football. Dr. W.C.B. has set forth persuasive rationale as to the posttraumatic onset of the current disability. He also reviewed the veteran's service medical records and has thoroughly examined the veteran on numerous occasions. Additionally, Dr. W.C.B. was cognizant of the veteran's history of rheumatoid arthritis. This was shown in his own medical entries and also in Dr. J.G.F.'s medical records, many of which were copied to Dr. W.C.B. Significantly, there is no other medical opinion of record that contradicts his nexus opinion. While the veteran also appears to suffer from a form of rheumatoid arthritis that affects multiple joints, which is apparently related to the veteran's psoriasis, the evidence shows that he indeed suffers from degenerative joint disease of the knees with an etiology related to service. The Board further notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. In view of the foregoing, the Board finds that the veteran is entitled to a grant of service connection for degenerative joint disease of the left and right knee. Reasonable doubt has been resolved in his favor. ORDER Service connection for degenerative joint disease of the left knee is granted. Service connection for degenerative joint disease of the right knee is granted. ____________________________________________ JOHN KITLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs