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12-19 026
12-19 026
| Board of Vet. App. | Jun 22, 2017
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Background

  • Veteran served active duty Oct 1998–Oct 2003 (Coast Guard) and alleges an in-service slip/fall during a rescue that injured his right knee.
  • He reported continued pain and swelling after the incident and self-treated; did not seek contemporaneous medical treatment often citing flight orders and unit culture.
  • Service records include a notation of "sore knee" at an Aug 2003 physical but no formal diagnosed knee injury in service.
  • Post-service treatment first appears in 2009: diagnosed torn lateral meniscus (partial meniscectomy in Oct 2009) and degenerative arthritis.
  • July 2015 VA examiner opined that right knee condition was less likely than not related to service, citing lack of contemporaneous medical evidence and a gap until 2009.
  • Board found the July 2015 opinion inadequate because the examiner discounted credible lay testimony and failed to consider Veteran and lay-witness statements; remanded for an addendum exam and opinion noting Veteran’s credibility and that an in-service diagnosis is not required for service connection.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Service connection for right knee disability Veteran: in-service slip/fall caused knee injury; continued symptoms through 2009; lack of contemporaneous treatment explained by circumstances VA/Examiner: no documentation of in-service injury or ongoing symptoms; first treatment in 2009 breaks nexus Remanded: examiner’s nexus opinion inadequate; Board accepts Veteran’s credibility and orders addendum opinion and further development

Key Cases Cited

  • Layno v. Brown, 6 Vet. App. 465 (Veteran competent to report symptoms)
  • Buchanan v. Nicholson, 451 F.3d 1331 (absence of contemporaneous records does not alone render lay testimony not credible)
  • Barr v. Nicholson, 21 Vet. App. 303 (examiner opinions must be adequate for decision-making)
  • Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence after remand)
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Case Details

Case Name: 12-19 026
Court Name: Board of Veterans' Appeals
Date Published: Jun 22, 2017
Docket Number: 12-19 026
Court Abbreviation: Board of Vet. App.