92 Decision Citation: BVA 92-28089 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-22 583 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for gouty arthritis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD R. P. Harris, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 1990 rating decision from the Seattle, Washington, Regional Office (hereinafter RO) which denied entitlement to service connection for right knee and left ankle disabilities. The appellant had active service from April 1963 to May 1976. In February 1991, a notice of disagreement was received and a statement of the case was issued in March 1991. A substantive appeal was received later that month. The case was docketed at the Board in June 1991. His service representative submitted written arguments dated in May and September 1991. By a decision in November 1991, the Board remanded the case to the RO to contact the appellant and request information related to treatment for right knee and left ankle disorders during service and subsequent thereto, and to contact the service department to verify his periods of military service. By a decision in April 1992, the RO denied service connection for gouty arthritis. A supplemental statement of the case was issued later that month which addressed the additional issue of service connection for gouty arthritis. The supplemental statement of the case was sent to the appellant accompanied by a notice of his appellate rights, which informed him that he had 60 days to file a substantive appeal as to the additional issue in order to perfect his appeal as to that issue. In late April 1992, the appellant submitted a statement which did not contain substantive arguments with respect to the additional issue of service connection for gouty arthritis; and that issue was not included in the certification of appeal dated the following month. The case was docketed at the Board in May 1992. His service representative submitted written arguments in April and June 1992 which addressed the issues of service connection for right knee and left ankle disorders, but not the issue of service connection for gouty arthritis. However, the United States Court of Veterans Appeals (hereinafter Court) has held that issues "inextricably linked together" should be adjudicated simultaneously. Harris v. Derwinski, 1 Vet.App. 180 (1991). It appears that the issue of service connection for a left ankle disorder is inextricably intertwined with the issue of service connection for gouty arthritis, since there is clinical evidence indicative of gouty arthritic involvement affecting that joint. In order to decide the issue of service connection for a left ankle disorder, we shall decide the issue of service connection for gouty arthritis since the latter issue has been properly developed by the RO and is inextricably intertwined with the former issue. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that during service, he injured his right knee when he fell out of a vehicle. He also sustained an injury to the left ankle when he stepped in a hole while jogging. He relates that the left ankle was placed in a cast. He has experienced pain and swelling in these joints and has crepitus in the right knee and arthritic changes in the left ankle joint. His representative contends that the directives set forth in the Board's remand decision have not been fully implemented, since there has been no attempt to obtain particulars of the circumstances surrounding the appellant's injuries during service nor an attempt to obtain service medical records related thereto. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. 7104 (West 1991), following review and consideration of evidence and material of record in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against allowing service connection for right knee and left ankle disabilities or for gouty arthritis. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appellant's appeal has been obtained by the RO. 2. During service, the appellant sustained a right knee injury. A chronic right knee disorder was not present during service or on examination for separation from service; nor has it been definitely medically shown post service. 3. During service, the appellant sustained a left ankle injury. A chronic left ankle disorder was not present during service or on examination for separation from service; it was first medically demonstrated at least several years after service. Arthritis of the left ankle was not present during service or manifested within the one-year presumptive period thereafter, and is not of traumatic origin related to military service. 4. During service, the appellant had hyperuricemia, defined medically as abnormal laboratory values for uric acid. Gouty arthritis was not definitely clinically shown during service, on examination for separation from service, or for years after service. CONCLUSIONS OF LAW 1. The appellant does not have a chronic right knee disorder that was incurred in or aggravated by active service. 38 U.S.C.A. 1110, 1131 (West 1991); 38 C.F.R. 3.303(b), (d) (1991). 2. A chronic left ankle disorder was not incurred in or aggravated by active service, nor may arthritis of that ankle joint be presumed to have been so incurred. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. 3.303(b), (d), 3.307, 3.309 (1991). 3. Gouty arthritis was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. 3.303(b), (d), 3.307, 3.309 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991), in that he has presented a claim which is not implausible. This being so, we must examine the record to determine whether the Department of Veterans Affairs (VA) has any further obligation to assist in the development of his claim. 38 U.S.C.A. 5107(a). After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. His service medical records appear relatively complete, and include references to injuries to the right knee and left ankle as contended. A report of examination for separation dated in February 1976 is of significant probative value, and there are numerous VA medical reports for the period since shortly after service separation. The service medical records as well as post service clinical reports contain laboratory studies for uric acid levels, and a recent VA examination in September 1990 adequately reported relevant medical history and clinical findings with respect to the right knee and left ankle joint, and the nature and etiology of arthritic involvement. Contrary to the appellant's assertions, the RO attempted to comply fully with the Board's directives cited in its remand decision, and did verify the appellant's period of military service. Furthermore, the RO, in a January 1992 letter, requested information from the appellant regarding relevant treatment for his right knee and left ankle. The appellant responded by referring only to treatment during military service, and at a VA medical center. The following month, the RO requested records from the VA medical center cited by the appellant, and these records were received and associated with the claims folder. In an April 1992 letter, the appellant indicated that he had no further information to submit. It is our position, therefore, that the VA has satisfied its duty to assist the veteran in the development of facts pertinent to his claim as required by 38 U.S.C.A. 5107(a). I. Service Connection for a Right Knee Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. 1110, 1131. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish clear chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. 3.303(b), (d). The appellant's service medical records reflect that, in October 1966, he complained of right knee pain, of undetermined etiology, and his knee was conservatively treated. In December 1969, he reported having fallen out of a jeep, injuring the right knee. He complained of patellar pain, and there was mild soft tissue swelling with an abrasion over that knee. Other clinical findings, including a radiographic study, were negative for right knee pathology. In February 1970 and March 1974, he had complaints of right knee pain. However, clinical evaluation of the knee was essentially unremarkable, and a chronic right knee disability was not diagnosed. For informational purposes, it should be added that he was treated during service for a disability affecting the other knee, and service connection is in effect for chondromalacia of the left patella. Significantly, a chronic right knee disorder was not clinically reported or diagnosed on examination for separation from service dated in February 1976, and was not claimed in his medical questionnaire at that time or in his initial application for disability benefits received in June 1976. Moreover, a VA examination report dated in July 1976, shortly after service, made no reference to gait impairment or right knee abnormalities. A September 1978 VA examination was also devoid of reference to right knee complaints or abnormal findings. The earliest post service clinical evidence pertaining to right knee symptoms was not until VA examination in 1984, when subpatellar crepitus of the knees was recorded, several years after service. While right knee crepitus was also reported on VA examination in 1990, there were no other pertinent symptoms, and a radiographic examination of the right knee was negative. According to medical authorities, Sounds such as crepitus, clicking, or snapping should be noted because they are often due to structures slipping over one another (e.g., tendons slipping over bone)....soft crepitus (like rubbing knuckles together) is a sound that sometimes occurs in symptomless joints and is not an indication of pathology. Hard crepitus (like a footstep on gravel) is indicative of arthritic changes in the joints. D. Magee, Ph.D., B.P.T., Orthopedic Physical Assessment, 15, 75 (2nd ed. 1992). As this medical article indicates, crepitus alone is not necessarily diagnostic of a chronic joint disorder, and may constitute a normal finding. In this case, the lack of chronic right knee symptoms in service and the absence of right knee symptoms until crepitus was initially reported several years after service clearly suggests that any right knee symptoms during service were acute and transitory and resolved therein without residual disability. The only post service symptom of the right knee, crepitus, was first medically reported several years after service, and may not be reasonably related to any incident of service. 38 C.F.R. 3.303(b), (d). Accordingly, service connection for a chronic right knee disability is not warranted. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. 5107(b) (West 1991). II. Service Connection for a Left Ankle Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. 1110, 1131. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309. The appellant's service medical records reveal that in March 1965, he injured his left ankle, which was placed in a cast because of pain and swelling. Significantly, an X-ray of that ankle was negative for a fracture or other pathology, and the cast was removed two and one-half weeks later. In December 1967, he twisted an ankle, but the medical records do not indicate which ankle. Regardless, there was only slight tenderness but no swelling, and the ankle was conservatively treated. The remainder of his service medical records, including the report of examination for separation from service, do not reflect complaints, findings or diagnoses pertaining to a chronic left ankle disability. It should be pointed out that the service medical records also indicate that he sustained an injury to his other ankle in 1972, but there is no indication that the medical records erroneously attributed this to the right ankle versus the left, since there are a number of separate clinical notations consistently referring to the right ankle. The post service medical records shortly after service make no reference to a chronic left ankle disorder, and the appellant did not claim such disability in his initial application for disability benefits received in 1976. There was no reference to complaints or abnormal findings in the left ankle on VA examination from 1976 to 1984. A chronic left ankle disorder was initially clinically reported years after service, and a showing of continuity of symptomatology after service discharge has not been shown to support the claim. 38 C.F.R. 3.303(b), (d). Significantly, X-rays of the left ankle in September 1990 revealed soft tissue swelling and minimal degenerative spurring, and the impression was history of left ankle fracture with gouty arthritis. The impression was apparently based upon the appellant's given history of a left ankle fracture in 1975 during service, which is obviously erroneous since the service medical records do not refer to a left ankle fracture, but rather a fracture of the right distal fibula in August 1972. Additionally, arthritis of the left ankle is not of traumatic origin, since according to medical authorities, traumatic arthritis develops within a reasonably short period after the trauma. "Traumatic arthritis may not develop for as long as 4 to 5 years after the injury." 2 Campbell's Operative Orthopaedics, Chapter 24, 950 (8th ed. 1992). "Direct trauma to a joint causes the soft tissues, particularly the synovial membrane, to become congested, edematous, and hemorrhagic (contused)....Over succeeding months, surface cartilage is worn away, and exposed subchondral bone undergoes reactive sclerosis." S. Turek, 1 Orthopaedics: Principles and their Application, 451-52 (4th ed. 1984). Again, it should be pointed out that degenerative arthritic changes of the left ankle were initially clinically shown in 1990, more than 20 years after the inservice injury, and therefore, would be very unlikely to be of traumatic origin related to service. We conclude that any left ankle symptoms during service were acute and transitory and resolved therein without residual disability, and arthritis of the left ankle was initially manifested many years after service, and is not a residual of an injury so many years earlier. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. 5107(b). III. Service Connection for Gouty Arthritis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. 1101, 1131. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and gouty arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309. We concede that laboratory studies during service in 1975 and 1976 revealed a slightly elevated uric acid level. However, there is no evidence that the appellant was clinically evaluated for gout or gouty arthritis during service or diagnosed as having said disease. Significantly, gout or gouty arthritis was not clinically reported or diagnosed on examination for separation from service or in the post service clinical reports for years after service. While on VA examination in 1990, the appellant gave a history of elevated uric acid level and urate crystals aspirated from the left ankle joint fluid in 1981, this is still years after service, and does not establish continuity of symptomatology to military service. 38 C.F.R. 3.303(b), (d). Moreover, this history is contradicted by the actual clinical records which show treatment for a genitourinary problem in 1981. On VA examination in March 1981 uric acid level was within normal limits. On VA examination in 1984 no history of gout or left ankle problem was recorded. According to medical authorities, Gout is a metabolic disease of heterogenous nature, often familial, associated with abnormal amounts of urates in the body and characterized early by a recurrent acute arthritis, usually monarticular, and later by chronic deforming arthritis....The precise relationship of hyperuricemia to acute gouty arthritis is still obscure, since chronic hyperuricemia is a frequent finding in people who never developed uric acid stones....The mechanism of the late, chronic stage of gouty arthritis is better understood. This is characterized pathologically by tophaceous invasion of the articular and periarticular tissues, with structural derangement and secondary degeneration (osteoarthritis) ....The metatarsophalangeal joint of the great toe is the most susceptible joint ("podagra"), although others, especially those of the feet, ankles, and knees, are commonly affected....As the attack progresses, the pain becomes intense. The involved joints are swollen and exquisitely tender and the overlying skin tense, warped, and dusky red....Once the diagnosis of acute gouty arthritis is suspected, it is confirmed by the presence of hyperuricemia, dramatic response to NSAIDs or cochicine, local desquamation and pruritus as the edema subsides, and polariscopic examination of joint fluid. S. Schroeder, M.D., et al., Current Medical Diagnosis and Treatment, 635-636 (1992). While hyperuricemia was present in service, this is not necessarily diagnostic for gout or gouty arthritis. The service medical records do not establish acute attacks of gouty arthritis, such as characterized by painful and swollen joints, or other symptoms characteristic of gouty arthritis. While there were instances of pain and swelling of joints during service, these were all attributable to specific injuries, not attacks of gouty arthritis. It would be merely speculative to assume that gout or gouty arthritis was present during service or within the one-year presumptive period post service merely on the basis of the presence of hyperuricemia. We reiterate that acute gouty arthritic attacks were not clinically shown during service or in the post service clinical reports for years after service. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. 5107(b). ORDER Service connection for a right knee or left ankle disorder or for gouty arthritis is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member Temporarily Absent) H. STERLING, M.D. HOLLY E. MOEHLMANN (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.