Citation Nr: 1002484 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 00-00 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for degenerative changes of the right wrist. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1955 and from May 1955 to December 1978. This matter was most recently before the Board of Veterans' Appeals (BVA or Board) in May 2006, at which time it was determined that finality had not attached to the July 1979 action of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, denying the Veteran's original claim for service connection for a right wrist disorder, and that the Veteran's original claim of April 1979 remained pending on appeal. The Board then returned the issues of entitlement to service connection for a right wrist disorder, as well as bilateral hip and knee disorders, for additional development consistent with the March 2006 Order of the United States Court of Appeals for Veterans Claims (Court), which had vacated the Board's August 2005 decision and had remanded the applicable issues for further development. The Board's May 2006 remand was to the VA's Appeals Management Center (AMC) in Washington, DC, so that additional procedural and evidentiary development could be undertaken. Following the AMC's attempts to complete the requested actions, the case has since been returned to the Board for further review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). Expedited consideration has followed. The issues of the Veteran's entitlement to service connection for a bilateral hip disorder and for a left knee disorder are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. A right knee disorder leading to total right knee replacement is causally or etiologically related to service. 2. Degenerative joint disease of the right wrist is causally or etiologically related to service. CONCLUSIONS OF LAW 1. A right knee disorder leading to total right knee replacement was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 2. Degenerative joint disease of the right wrist was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, the Board finds that a discussion of the VA's "duty to notify" and "duty to assist" obligations is not necessary since the Veteran will not be prejudiced by any deficiency in those obligations given the favorable decision with respect to the claims addressed on the merits. The Veteran essentially contends that he has right knee and wrist disorders that are related to service and should be service connected. Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability may be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this instance, the Veteran offers a credible account that is otherwise not contradicted by evidence on file, to the effect that, beginning in or about 1968 and in years subsequent, he was treated for right leg and knee problems, which he was told entailed degenerative arthritis, and that, during the period from 1974 to 1978, he was diagnosed and treated for a degenerative process affecting the bone or joint of his right wrist. In addition, the Veteran presents notarized statements, dated in February 2003, from two of his sons, with one son recalling that, during the period from 1967 to 1970, the Veteran sustained injuries to a leg in an ice skating accident which required casting and use of crutches for a two-month period. The other son indicated that he was aware of an ongoing right wrist problem of the Veteran since the early to mid-1970s. Service treatment records are incomplete through no fault of the Veteran, and that notwithstanding, they include a physical profile report of April 1970 indicating that that the Veteran was placed on a one-year profile for a mid- collateral ligament strain of his right knee. Also shown was a November 1978 complaint of right wrist pain, with X-rays of the right wrist in December 1978 being interpreted as normal. The first postservice VA medical examination was undertaken in May 1979 but no evaluation or testing of the right wrist or knee was attempted at that time. A bone scan in October 1995 revealed degenerative arthritis of the spine and multiple joints of all four extremities, most prominently of the right wrist. X-rays of the right wrist in March 1997 disclosed significant narrowing the radiocarpal joint, as well as cystic changes of the navicular and lunate carpis, with secondary osteophytes; in the opinion of the reviewing radiologist, the appearance of the right wrist was consistent with degenerative osteoarthritis. On a VA medical examination in November 1998, there was no evidence of a loss of function of the right knee; there were complaints of right wrist symptoms, with examination showing tenderness but no swelling or loss of function, including limitation of motion. The clinical diagnosis was of right wrist pain of undetermined origin. X-rays were indicative of mild osteoarthritis of the right wrist; X-rays of the right knee were interpreted to be essentially normal. Much additional evaluation and testing of the Veteran's right wrist disorder in shown in years subsequent, with X-rays in June 2006 showing degenerative joint disease with a probable old healed fracture of the carpal navicular. X-rays of the right knee in March 2002 following a fall on the day prior disclosed mild osteoarthritic changes and longstanding medial collateral ligament and quadriceps tendon calcification, with no appreciable fracture. Magnetic resonance imaging in October 2002 demonstrated a strain of the anterior collateral ligament, tear of the medial meniscus, suspected tear of the lateral meniscus, and small effusion. Based on continuing complaints of right knee pain and dysfunction, a right medial meniscectomy and chondroplasty of the right medial femoral condyle followed in March 2003. When evaluated for continuing right knee complaints in December 2003, the Veteran indicated that his right knee had been symptomatic since 1968 when he fell on ice and that it had bothered him on and off since then. Right total knee replacement followed in June 2004. Pursuant to the Board's remand of May 2006, the Veteran was afforded a VA examination in order to ascertain the existence of a nexus between the Veteran's claimed right wrist and knee disorders and his period(s) of military service. Findings from clinical evaluation and testing yielded pertinent diagnoses of postoperative residuals of a right total knee replacement and severe degenerative joint disease of the right wrist. On the basis of the foregoing, as well as review of the claims folder in its entirety, the VA examiner opined that it was at least as likely as not that the Veteran's right wrist arthritis and right knee disorder had their onset in service, and, as pertaining to the knee, that the right knee disorder resulted from inservice trauma leading to full leg casting. The Veteran presents a credible account of inservice injury or the initiation of symptoms pertaining to the right knee and right wrist, and that account his confirmed to some extent by his sons' separately reported observations. Service treatment records are incomplete, but they denote ligament strain of the Veteran's right knee and a complaint of right wrist pain. Postservice medical data identify disability involving the right knee and wrist many years after service, although the existence of such disability is not shown to have coincided with any incident of postservice injury, to include the March 2002 fall following which additional medical assistance was received for right knee problems. Most significantly, the record includes the March 2007 opinion from a VA physician linking the Veteran's claimed right knee and wrist disorders to his period(s) of military service or specific injury occurring therein. That being the case, grants of service connection for postoperative residuals of a total right knee replacement, inclusive of right knee arthritis, and for severe degenerative joint disease of the right wrist, are in order. To that extent, this portion of the appeal is granted. ORDER Service connection for a right knee disorder leading to total right knee replacement is granted. Service connection for degenerative joint disease of the right wrist is granted. REMAND VA medical examination in March 2007 culminated, in pertinent part, in entry of a diagnosis of moderate symmetrical degenerative joint disease of the hips commensurate with age. No diagnosis or nexus opinion as to the left knee was offered by the VA examiner, and although an addendum of February 2009 to such examination or the report thereof is shown, no specific diagnosis as to left knee disablement was offered. Rather, the VA examiner referenced prior diagnoses and treatment of a left knee disorder, characterized at times as entailing degenerative arthritis. Still, no opinion as to the relationship of any existing left knee disorder to the Veteran's military service was offered. Corrective action to ensure compliance with the terms of the prior remand is deemed necessary. Stegall, supra. With respect to the hips, the VA examiner in March 2007 offered the following opinion: Based on the veteran's records, history, and physical examination it is at least likely as not the (sic) his bilateral hip djd is a normal progression of aging rather that (sic) related to his time in the service. He presently has symmetrical DJD commensurate with age and fairly good ROM. While it appears that the VA examiner in March 2007 was convinced that the Veteran's bilateral hip disorder was not service-related, but age-related, it is arguable, and reasonably so, that the examiner concluded that there was a 50 percent probability that the claimed disability was related to military service. On that basis, clarification from the examiner is found to be in order, prior to the Board's entry of a final determination regarding the claimed bilateral hip disorder. The Veteran further argues that the AMC has failed to undertake those actions necessary to obtain all pertinent service treatment records as it was charged to do by the Board through its 2006 remand. The Board concurs, noting that while service personnel records were obtained on remand and service treatment records which were originally sent to VA in 1979 and subsequently misplaced were located and associated with the claims folder, none of the records referenced by the Veteran as missing were obtained. Moreover, despite the absence of any success in obtaining the records in question, no formal finding as to the unavailability of service treatment records was ever initiated by the AMC. Remand for corrective actions is required. Stegall, supra. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. Accordingly, this case is REMANDED for the following action: 1. Undertake any further action that may be necessary to comply with notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), including notice to the Veteran of what information and evidence are still needed to substantiate his original claims for service connection for an acquired psychiatric disorder and for alcoholism secondary to an acquired psychiatric disorder. He should also be advised that VA will assist him in obtaining service treatment records or records of treatment from private medical professionals, or other evidence, provided that he furnishes sufficient, identifying information and written authorization. 2. Obtain a complete set of service medical records for each period of military service of the Veteran for inclusion in his VA claims folder. It is reported by the Veteran in a VA Form 21- 4138, Statement in Support of Claim, received by the RO in July 2003, that at least two and possibly three of his reenlistment medical examinations are missing, as are records compiled at Barksdale Air Force Base (1951-1953), Korea 606 ACW (Dispensary) (1953-1954), George Air Force Base (1959-1963), Iceland (1963-1964), Castle Air Force Base (1964-1966), Philippines (1966- 1967), McGuire Air Force Base and Fort Dix (1967-1969), Korat Air Force Base, Thailand (1967-1970), and Mather Air Force Base (1970-1978). Efforts to obtain these and any other Federal records must continue until the AMC determines that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and he must then be afforded an opportunity to respond. 3. Once the actions requested in paragraphs one and two above are completed in full, then and only then return the report of a VA joints examination conducted on March 16, 2007, at the VA Medical Center in Reno, Nevada, to the examiner who conducted that examination for the preparation of an addendum to his earlier report. The Veteran should be recalled for any further examination of his hips deemed necessary by the examiner or his designee and, in addition, for initial evaluation of his claimed left knee disorder and an opinion as to its relationship, if any, to military service. The Veteran's claims file must be furnished in its entirety to the examiner or his designee for use in the study of this case and the prepared report should indicated whether in fact the claims folder was made available and reviewed. Ultimately, the examiner or his designee is asked to clarify his earlier opinion as to the relationship between the Veteran's claimed bilateral hip disorder and his period(s) of service, including reported injuries occurring therein. To that end, he or his designee is asked to provide a medical opinion as to the following: (a) Is it at least as likely as not (50 percent or greater degree of probability) that any disorder of either hip and/or the left knee originated during the Veteran's periods of actice service from February 1951 to February 1955 and from May 1955 to December 1978 or is otherwise related thereto? (b) Is it at least as likely as not (50 percent or greater degree of probability) that arthritis of either hip and/or the left knee was manifested during the one-year period immediately following each respective discharge from active service, and, if so, how and to what degree? The examiner is advised that that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim; less likely weighs against the claim. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs