Citation Nr: 1007115 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 94-27 560A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability, previously claimed as a right knee condition. 2. Entitlement to service connection for lumbar degenerative osteoarthritis status post L4-L5 laminectomy, previously claimed as a back disability. 3. Entitlement to an increased evaluation in excess of 60 percent for nephritis with hypertension and coronary artery disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to January 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 1994 and August 2006 rating decisions of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). In the January 1994 rating decision, the RO denied service connection for a chronic knee condition and determined that new and material evidence had not been submitted to reopen the Veteran's claim of service connection for a back condition. In the August 2006 rating decision, the RO increased the Veteran's service-connected nephritis with hypertension and coronary artery disease to 60 percent disabling, effective September 2005. In March 2008, the Board remanded the claims for additional development and adjudicative action. With regard to the service connection issues, the RO substantially complied with the Board's request, and the case has been returned to the Board for further appellate review. The issue of entitlement to an increased evaluation in excess of 60 percent for nephritis with hypertension and coronary artery disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Competent evidence of a nexus between the Veteran's right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability and service is of record. 3. Competent evidence of a nexus between the Veteran's lumbar degenerative osteoarthritis status post L4-L5 laminectomy and service is of record. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability was incurred during his active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1133, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. Giving the benefit of the doubt to the Veteran, lumbar degenerative osteoarthritis status post L4-L5 laminectomy was incurred during his active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1133, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Decision The Veteran contends that service connection is warranted for his right knee and back disabilities. In a July 1994 personal statement, the Veteran explained that he injured his back during basic training in 1956 and received subsequent care thereafter. Due to the initial back injury, he stated that he was placed on light duty or "on quarters" throughout his military career. He further added that he endured right knee problems in service, which were worsened during his assignment to the aircraft fuel systems repair at McChord Air Force base. The Veteran contends that service connection is warranted for his right knee and back disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection for certain "chronic diseases" (including arthritis), may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309(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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; an (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Due to the similar medical history and evidence related to the claims, as well as the similar disposition of the issues, the Board will address them in a common discussion. Review of the Veteran's service treatment records reflect complaints and treatment for right knee and back problems. In 1959, the Veteran reported to sick call after running in a ball game and twisting his knee. The sick call note stated that the Veteran's knee exhibited locking, but otherwise, x- rays and physical examination results were negative. The physician diagnosed the Veteran with a right knee sprain. Thereafter, in July 1962, the Veteran returned to sick call for complaints of low back pain. It was noted that he hurt his back the day before and since then, has been unable to stand. No further evaluation of the Veteran's back was noted. Upon discharge from service, clinical evaluation of the Veteran's lower extremities and back were normal; however back problems in 1962 were noted on the Veteran's November 1976 report of medical history. Post service treatment records reflect continuing complaints and treatment for the Veteran's right knee and back disabilities. Specifically, beginning in 1980, treatment records report the Veteran's complaints of back pain, which resulted in two surgeries being performed in 1984 and 1985. The Veteran underwent a decompressive laminectomy at L4-5 with L4-5 discectomy in January 1984, followed by a decommpressive laminectomy from L3 to S1 in March 1985. In December 1990, the Veteran's back was injured when he slipped and nearly fell on icy steps. Although he did not fall to the ground, the January 1991 private clinic note states that he twisted his back when he lost his balance. He was assessed with low back, status post decompressive laminectomy from L3 to S1, with L3-4 and L4-5 discectomies. In regards to the Veteran's right knee disability, treatment records exhibit numerous complaints and treatment for a right knee disability. In a June 1990 private treatment record, the Veteran's complaints of right knee pain were noted. He explained that the pain flared up after a brief episode of playing tennis. It was also noted that his right knee had been hurting periodically in his youth while playing football and when he was a parachutist in service. He was diagnosed with advanced osteoarthritis. As such, right total knee replacement was performed in 1991 and in October 2001, right total knee revision was completed. In March 2009, the Veteran was afforded a VA examination for his disabilities. After physical examination of the Veteran, the VA examiner diagnosed him with right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability and lumbar degenerative osteoarthritis status post L4-L5 laminectomy. After a review of the claims file, the Veteran's medical history, and his statements made during the VA examination, the VA examiner concluded that the Veteran's in-service knee strain is biomechanically related to his back pain. He explained that because of a clear history of an injury documented in service, namely twisting his knee after playing softball in service, and a history of parachuting, "it is at least as likely as not" that the Veteran's current right knee and back disabilities are related to his military service. The Board has reviewed this case and finds that the evidence is in equipoise and therefore supports the grant of service connection for the Veteran's right knee and back disabilities. The Veteran is competent to report that he experienced right knee and back problems during service, which is supported by the sick call reports of record. It must be noted that the Veteran is not, on the other hand, competent to state that he sustained right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability and lumbar degenerative osteoarthritis status post L4-L5 laminectomy in service, as that requires a medical opinion or requires objective medical evidence. Regardless, there is no reason for the Board to question the Veteran's credibility in this case, particularly when the VA examiner supports the finding that the Veteran's right knee and back disabilities are related to his military service. The Board is certainly aware that the RO concluded that the March 2009 VA examiner's opinion lacked probative value because the objective evidence failed to show a history of parachute jumping; therefore, the VA examiner only relied on the Veteran's recitation of his own history rather than the evidence of record. See the January 2010 Supplemental Statement of the Case (SSOC). Although there is no direct evidence of parachute jumping of record, his DD Form 214 shows that his military duties involved flying because his military occupational specialties were aerospace systems superintendent and instrument automatic pilot. Furthermore, the Veteran's service treatment records are replete with several instances during which time the Veteran was unable to fly due to an illness or disability. Thus, it cannot be discounted entirely that the Veteran was not involved in parachute jumping during his military service. More importantly, the VA examiner did not solely rely on the Veteran's statements made during the examination, but also relied on the Veteran's service treatment records, which shows a "clear history of [an] injury documented in . . . service . . . ." Thus, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin or the degree of disability, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability and lumbar degenerative osteoarthritis status post L4-L5 laminectomy is warranted. II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veteran Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Given the fully favorable decision discussed above, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER Entitlement to service connection for right knee degenerative joint disease, status post total knee arthroplasty with residual inflammation and intermittent instability, previously claimed as a right knee condition, is granted. Entitlement to service connection for lumbar degenerative osteoarthritis status post L4-L5 laminectomy, previously claimed as a back disability, is granted. REMAND The Veteran contends that his service-connected nephritis with hypertension and coronary artery disease warrants an increased rating. Upon review of the claims file, the Veteran indicated that he wanted to have a Board hearing, as reflected in his VA Form 9, Appeal to the Board of Veterans' Appeals, received in November 2007. (It is noted that a copy of the VA Form 9 was received at the Board in February 2008). After certification to the Board, there was no indication in the record that the requested Board hearing had been scheduled, and as such, the issue was remanded to afford the Veteran the requested hearing. In the March 2008 Board remand, the RO was requested to schedule a travel board hearing at the RO in Seattle, Washington, for the Veteran's claim for an increased evaluation in excess of 60 percent for his service-connected nephritis with hypertension and coronary artery disease. However, upon review of the claims file, there is no indication that the Veteran has been scheduled for a travel board hearing, which was also reiterated by the Veteran's representative in the January 2009 informal hearing presentation. Thus, the Board finds that the RO did not fully comply with the Board's instructions in the March 2008 remand, thereby constituting a violation of Stegall v. West, 11 Vet. App. 268 (1998). To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED for the following action: Schedule the Veteran for a Travel Board hearing at the RO in Seattle, Washington. The Veteran and his representative should be notified of the date and time of the hearing. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs