Citation Nr: 1009331 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 07-31 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury. 2. Entitlement to service connection for residuals of a right ankle strain. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for residuals of a left upper extremity injury including radiculopathy (claimed as left shoulder and arm injury). 5. Entitlement to service connection for a cervical spine disability, to include degenerative joint disease, osteoarthritis, and spondylosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and May 2007 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2008, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of the hearing is of record. In January 2009, the Board denied service connection for residuals of a right knee injury, residuals of a right ankle strain, and bilateral hearing loss. In addition, the Board remanded the issues of entitlement to service connection for left upper extremity and cervical spine disabilities to the Appeals Management Center (AMC) in Washington, D.C. for further evidentiary development. The Veteran appealed the Board's denial of his right knee, right ankle, and hearing loss claims to the United States Court of Appeals for Veterans Claims (Court). In January 2010, the Court vacated that portion of the Board's January 2009 decision that had denied these issues and remanded the matter for further actions consistent with a December 2009 Joint Motion For An Order To Remand, In Part, The Board Decision And Incorporating The Terms Of This Remand (Joint Motion). Additionally, in January 2010, the AMC re-adjudicated the Veteran's claims for service connection for left upper extremity and cervical spine disabilities. Upon a continued denial of these issues, the AMC issued a supplemental statement of the case (SSOC) and returned the claims file to the Board for further appellate review. The claims for service connection for residuals of a right ankle strain, bilateral hearing loss, residuals of a left upper extremity injury, including radiculopathy (claimed as left shoulder and arm injury), and a cervical spine disability (to include degenerative joint disease, osteoarthritis, and spondylosis) are addressed in the REMAND portion of the decision below and are being REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT A chronic right knee disability was not shown in service or until many years thereafter, and the currently-diagnosed chondromalacia of the right knee is not shown to be associated with the Veteran's active duty. CONCLUSION OF LAW Residuals of a right knee injury were not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And To Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2009)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his representative, if any, of any information, and any 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). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Additionally, the Court has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, a June 2005 letter notified the Veteran of the criteria for establishing his claim for service connection for a right knee disability. This document also informed him that VA would make reasonable efforts to help him obtain necessary evidence with regard to this issue but that he must provide enough information so that the agency could request the relevant records. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In addition, a March 2006 letter notified the Veteran of the type of evidence necessary to establish a rating and an effective date. See Dingess/Hartman, 19 Vet. App. at 488. The March 2006 letter was issued after the initial adjudication and denial of the service connection issue adjudicated herein. In any event, however, the timing defect was cured by the RO's multiple subsequent re-adjudications of this claim and issuance of a statement of the case in May 2006 and SSOCs in December 2006 and January 2010. Pelegrini II. See also Mayfield v. Nicholson, 444 F.3d at 1333. Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2009). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). In the present case, the record reflects that VA has made reasonable efforts to obtain service treatment records as well as reports of relevant post-service treatment. The Veteran has been accorded a pertinent VA examination. He also testified at a hearing conducted before the undersigned VLJ via videoconferencing. Indeed, the Veteran was notified and aware of the evidence needed to substantiate his service connection claim adjudicated herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining such evidence. The Veteran has actively participated in the claims process by submitting argument and evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication of this appeal or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Thus, any such error is harmless and does not prohibit consideration of the service connection claim adjudicated herein. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473. See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Initially, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). Also, service connection for certain diseases, such as arthritis, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2009). According to service treatment records, while working in November 1967, the Veteran fell and injured his right knee. He sought treatment for severe pain in this joint. The treating medical professional prescribed medication, gave the Veteran an Ace wrap, and instructed him to return if needed. The remainder of the service treatment records is negative for complaints of, treatment for, or findings of a chronic right knee disability. In fact, the separation examination conducted in May 1970 demonstrated that the Veteran's lower extremities were normal. Furthermore, post-service medical records do not reflect right knee problems until August 2006. Specifically, at a VA joints examination conducted in that month, the Veteran reported experiencing daily severe right knee pain originating with bending of this joint and lasting at least four hours. However, he denied constant pain, stiffness, swelling, heat, redness, instability, or locking. A physical examination conducted on his right knee showed normal range of motion of this joint without pain, laxity, or instability but with grade 2 moderate crepitus. X-rays taken of the Veteran's right knee were normal. The examiner diagnosed chondromalacia of the right knee. The claims folder contains no subsequent medical records reflecting right knee treatment. In this regard, the Board acknowledges that, in the VA Form 21-526, Veteran's Application For Compensation Or Pension (Form 21-526), which was received at the RO in June 2005, the Veteran stated that he had received right knee treatment from a private physician since his service separation in 1970. Medical records received from this doctor in August 2005, however, do not reflect right knee treatment. Further, at the August 2006 VA joints examination, the Veteran specifically stated that he did not recall any follow-up care (after the in-service injury to his right knee), including after he left the military. In fact, at that post-service VA examination, the Veteran denied any surgery, injections, physical therapy, current medications, or the use of assistive devices for his right knee. As this discussion illustrates, post-service right knee pathology was shown until more than 35 years after the Veteran's discharge from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges the Veteran's contentions that he has experienced frequent pain, occasional swelling, popping and cracking sensations, as well as limitation of motion in his right knee since the in-service injury to this joint. While the Veteran is competent to report symptoms, the matter of the etiology of the diagnosed chondromalacia of his right knee requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007). Thus, as a lay person, the Veteran is not competent to offer an opinion on medical causation, and the Board may not accept his unsupported lay speculation with regard to this matter. See Espiritu v. Derwinski, 2 Vet. App. at 494-495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992), Moray v. Brown, 5 Vet. App. 211 (1993). Of particular significance to the Board is the absence of any complaints of, treatment for, or findings of right knee symptomatology in the service treatment records after the November 1967 injury to this joint. In fact, no mention of any such symptomatology appears to have been made at the May 1970 service separation examination. Such is highly probative that a chronic right knee disability was not shown in service. Additionally, post-service medical records do not reflect right knee complaints until more than 35 years after the Veteran's discharge from active duty. Indeed, at the August 2006 VA joints examination, the Veteran specifically stated that he did not recall any follow-up care (after the in-service injury to his right knee), including after he left the military. Further, he did not file a claim for service connection for a right knee disability until June 2005, approximately 35 years after his discharge from active duty. The Board finds the fact that the Veteran did not require continuing treatment following his knee injury for the remaining 21/2 years of service or following service, and his normal separation examination, to be more probative than the Veteran's contentions concerning the continuing nature of knee complaints. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence). Moreover, the claims file contains no competent medical evidence even suggesting a relationship between the currently-diagnosed chondromalacia of the Veteran's right knee and his active duty. In fact, the VA physician who conducted the August 2006 VA joints examination opined (after reviewing the claims folder, interviewing the Veteran, and examining his right knee) that the contusion that the Veteran had sustained to his right knee during service had resolved without residuals and that the currently-diagnosed chondromalacia of his right knee "is less likely than not related to . . . [his] in-service right knee injury . . . [in November 1967]." In support of these conclusions, the examiner noted that the Veteran had not sought further right knee treatment after the initial in-service injury to this joint-either during or after active duty. Of further importance to the examiner is the Veteran's 30-year post-service employment as a mechanic, which involves frequent changes of positions. Consequently, the Board finds that the medical evidence of record is more probative than the contentions as to onset and etiology of the Veteran's right knee disability rendered decades after service. Thus, based on this evidentiary posture, the Board finds that the preponderance of the evidence in this case is against the claim for service connection for residuals of a right knee injury. The benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for residuals of a right knee injury is denied. REMAND With respect to the remaining issues on appeal, the Board finds that additional development is necessary. Right Ankle According to the service treatment records, the Veteran injured his right ankle when he fell off a step ladder that had broken in January 1969. X-rays taken of the Veteran's right ankle were negative, and he was given an Ace wrap. Subsequently, in June 1969, the Veteran received treatment for a sprain to his right ankle. A physical examination demonstrated tenderness over the anterior aspect of his right instep. X-rays showed no fracture, and the Veteran was given an Ace wrap and instructed to keep his right ankle elevated with an ice pack with no duty until the following morning. The May 1970 separation examination demonstrated normal lower extremities. At the VA joints examination conducted in August 2006, the examiner acknowledged the 1969 injuries to the Veteran's right ankle. After a physical examination (including radiographic studies) which was essentially negative, the examiner appeared to conclude that the Veteran had no residuals of the in-service right ankle sprain. The examiner specifically stated that there was no "showing [of] a chronic condition or residuals of the ankle [injury]." Importantly, however, the examiner also stated that the Veteran's "current right ankle sprain is at least as likely as not related to . . . [his] in-service right ankle injury . . . [in January 19]69" (emphasis added). Subsequently, at the recent hearing, the Veteran described continued right ankle symptoms, including aching and swelling. In light of the conflicting opinion noted in the August 2006 VA joints examination, as well as the Veteran's subsequent testimony, the Board believes that a remand of his right ankle claim is necessary. Specifically, on remand, the Veteran should be accorded a new VA examination to determine the existence of any chronic right ankle disability and for an opinion as to whether that disorder is related to service. Bilateral Hearing Loss Testing completed at a VA audiological examination in June 2006 revealed mild to moderate bilateral sensorineural hearing loss. The examiner, however, was unable to render an opinion as to the etiology of this disability "without resort to mere speculation." According to the examiner, service treatment records provided no documentation of hearing loss. The examiner did not reference any post-service medical records. In fact, although she noted that she had reviewed the Veteran's claims folder (including in particular the service treatment records), she also stated that she had not reviewed the Veteran's private and VA post-service treatment records. The Board acknowledges that service treatment records are indeed negative for complaints of, treatment for, or findings of a hearing loss disability. In fact, the May 1970 discharge examination demonstrated normal hearing acuity (15/15 by whispered voice testing). Additionally, post service medical records do not reflect diminished hearing acuity until June 2005, approximately 35 years after the Veteran's discharge from active duty. Throughout the current appeal, however, the Veteran has contended that his in-service responsibilities involved active duty aboard an aircraft carrier and that such service exposed him to "intense noise . . . [from] internal combustion engines, jet engines, heavy machinery, gunfire, aircraft, and acoustic trauma." He also maintains that he has experienced hearing problems since service. In particular, he asserts that his hearing acuity was worse at the time of his discharge from service in July 1970 than it was at the time he entered active duty in September 1966. Service personnel records confirm the Veteran's Navy service aboard a ship as well as his foreign and/or sea service for approximately 101/2 months. Significantly, the June 2006 VA audiologist did not address the Veteran's assertions of worsening hearing acuity during active duty and of hearing problems since service. In light of this fact, the Veteran's competent contentions regarding his hearing impairment, and the service personnel records which appear to support the Veteran's assertions that he served aboard a noisy aircraft carrier, the Board believes that a remand of his hearing loss claim is necessary. Specifically, on remand, the Veteran should be accorded a VA audiological evaluation to determine the nature of any bilateral hearing loss disability that he may have and an opinion as to whether such is related to his noise exposure in service. Left Upper Extremity & Cervical Spine As noted in the Board's January 2009 Remand, following a VA miscellaneous neurological disorders examination conducted in July 2006, the examiner concluded that the clinical evidence for radiculopathy or neuropathy was meager, at best. To evaluate further the presence of any such pathology, the examiner recommended additional neurological testing, including a nerve conduction study and an electromyography of the Veteran's left upper extremity. Indeed, included in the claims folder was a VA record indicating that the results of an electromyography completed on September 5, 2006 were abnormal. However, no assessment or findings were reported on this document. On remand, the RO/AMC should attempt to obtain the report which contains the actual findings of the testing and the assessment provided based on those findings. Further review of the claims folder indicates that, in March 2007, the Veteran submitted an authorization for release of the records of treatment that he had received for his osteoarthritis from his private physician between 1996 and 2007. In this regard, the Board notes that the claims folder contains records of such treatment dating in 2005. On remand, therefore, an attempt should be made to procure, and to associate with the claims folder, copies of treatment records from Dr. Chapman dating from 1996 to June 2005 and dating since July 2005. Accordingly, the case is REMANDED for the following actions: 1. Obtain a copy of the report of the results of electromyography testing completed at the Columbia VAMC on September 5, 2006, to include the findings and assessment. All efforts to procure a copy of this medical record should be annotated in the Veteran's claims folder. If the document is not available, that fact should also be noted in the claims file and the Veteran notified of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers, VA and private, who treated him for his right ankle, hearing loss, left upper extremity, and neck problems since service. After obtaining the appropriate release of information forms if necessary, procure copies of the records of such treatment that the Veteran reports. The Veteran should be specifically requested to provide a release of information form to permit a request to Dr. Chapman for treatment records dating from 1996 to June 2005 and since July 2005. Associate all records obtained with the claims folder. 3. Thereafter, schedule the Veteran for a VA orthopedic examination to determine the nature and extent of any right ankle disability and for an opinion as to whether any currently diagnosed disorder is related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated studies testing should be conducted. All pertinent pathology should be noted in the examination report. Following review of the claims file and examination of the Veteran, the examiner should specifically indicate whether the Veteran suffers from any current right ankle disability. For any right ankle disability diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active duty (including the two in-service episodes of right ankle treatment in 1969). Complete rationale should be given for all opinions. 4. Also, schedule the Veteran for a VA audiological evaluation to determine the nature and extent of any bilateral hearing impairment and for an opinion as to whether any such currently diagnosed disorder is related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated studies testing should be conducted. All pertinent pathology should be noted in the examination report. For any hearing loss diagnosed on examination, the examiner should express an opinion as to whether it is more likely, less likely, or at least as likely as not (50 percent probability), that such disorder had its clinical onset in service or is otherwise related to active service. In rendering such conclusion, the examiner should address the Veteran's contentions that his in-service responsibilities aboard an aircraft carrier exposed him to "intense" noise and that his hearing acuity worsened during his active duty. Complete rationale should be given for all opinions reached. 5. Following completion of the above, adjudicate the issues of entitlement to service connection for residuals of a right ankle strain, bilateral hearing loss, residuals of a left upper extremity injury including radiculopathy, and a cervical spine disability to include degenerative joint disease, osteoarthritis, and spondylosis. If the decisions remain adverse, the Veteran should be provided with an SSOC. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the agency of original jurisdiction. However, he is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2009). He has the right to submit additional evidence and argument on the matters that 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 or by the Court 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). ______________________________________________ K. A. Banfield Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs