Citation Nr: 1012102 Decision Date: 03/31/10 Archive Date: 04/07/10 DOCKET NO. 05-22 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION Please note 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). The Veteran had active military service from December 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2006 the Veteran testified before a Veterans Law Judge at a Travel Board hearing in Houston, Texas. The transcript of that hearing has been associated with the claims file. A March 2007 Board decision found that new and material evidence had been submitted to reopen previously denied claims of entitlement to service connection for hearing loss, tinnitus, a bilateral knee disorder, and a bilateral ankle disorder since a prior RO denial in June 2000; but de novo review was deferred pending further development. An October 2007 rating decision granted service connection for bilateral hearing loss and for tinnitus and assigned initial disability ratings, respectively, of 40 percent and 10 percent, from April 24, 2003 (date of receipt of the application to reopen those claims). These awards of service connection are a complete grant of the benefits sought and, thus, those matters are no longer in appellate status. In September 2008, the Veteran was informed that the Veterans Law Judge that presided over his August 2006 hearing was no longer at the Board, and that he had a right to another hearing conducted by another judge who would ultimately decide his appeal. The letter explained that if the Veteran did not respond within 30 days, the Board would assume he did not want another hearing. The Veteran did not respond. In November 2008 the case was again remanded for further development, including acquisition of private medical records. Unfortunately, regarding the right knee and left ankle claims, further action is necessary to comply with the Board's 2008 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for a right knee disorder and a left ankle disorder are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's current left knee and right ankle disorders are linked by probative medical evidence to his active service. CONCLUSIONS OF LAW 1. A chronic left knee disability (diagnosed as severe posttraumatic arthritis of the left knee) was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2009). 2. A chronic right ankle disability (diagnosed as posttraumatic arthritis in the right ankle) was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claims of service connection for a left knee and a right ankle disability are resolved in the Veteran's favor, VCAA compliance need not be addressed. REASONS AND BASES FOR FINDING AND CONCLUSIONS Factual Background Service treatment records (STRs) have not been associated with the claims file and are regarded as fire damaged; however, DD-214 confirms that the Veteran received a parachute badge at Fort Benning, Georgia, in July 1953. Private treatment records dating from 1984 show treatment for left knee derangement. In a letter dated in July 2000, a private physician wrote that he had been treating the Veteran "for over 15 years." He recounted the Veteran's report to him of having made "numerous parachute jumps" while in-service. He then opined that a current left knee and right ankle condition were incurred "during the line of duty." Private treatment records dated in 2003 refer to a history of longstanding left knee pain. In correspondence dated in June 2004 the Veteran wrote "I have always had problems with my knees since (the) military and have believed these squat jumps were extremely detrimental to the ligaments in my knees." During an August 2006 Board hearing the Veteran testified that he performed parachute jumps while in service. He testified that "in those days you didn't go up complaining about twisted ankles or nothing like that." He elaborated as follows: On one of the mock ups I was going landing and I twisted a knee and an ankle. Well I wouldn't have complained it at all but this Captain had done the same thing right ahead of me and he was standing there with somebody supporting him. He said well I done the same thing we going to go to the medical facility. Well went to the medical facility in Fort [Benning]. In query to further questioning he indicated that his first treatment, post-service, was in or around 1973. In letters dated in August 2006 a second private physician wrote that the Veteran was well known to him, and that he had seen him in the past for arthritis in his knees. He reported that the Veteran was then complaining of bilateral ankle pain, worse in the right than the left. Physical examination found effusion and joint line tenderness of the right lower extremity. X-rays also showed "pretty significant osteoarthritis in both ankles and the tibial talar joint." The examiner then averred that "he has a history of being a paratrooper jumper, so I think that is probably where his problems come from." That same private doctor again provided another statement of nexus that same month. In June 2007 the Veteran was afforded a VA Compensation and Pension (C&P) joint examination. Physical examination found the left knee to be "somewhat arthritic." X-rays revealed "worsening osteoarthritis of the left knee with hyaline cartilage calcifications suggestive of CPPD deposition" and "degenerative changes with joint space narrowing of right ankle with soft tissue swelling." Diagnosis was degenerative arthritis of the left knee and of the right ankle. The examiner added as follows: It is my opinion that he has age acquired degenerative joint disease of both his bilateral knees and his bilateral ankles. There is no indication of injury significant enough to cause traumatic arthritis in either his ankles or his knees while he was in the military. My opinion is, is that his bilateral knees and his bilateral ankles are not due to his military service. In October 2009 the Veteran underwent another C&P joints examination. At that time he reported that he was airborne qualified and had had 26 jumps during service. He further reported that he had twisted his left knee and right ankle during jump school, and that he had been placed on profile pursuant to said. He said that he completed his airborne training a week late. The examiner noted that there was no evidence of any treatment following service until 1983. Physical examination of the left knee found 18 degrees valgus. Physical examination of the right ankle found it to be moderately enlarged compared to the left knee. X-rays of the left knee revealed marked narrowing of both knee compartments associated with osteophyte formations and deformity of the patella, which the examiner opined "may be related to old trauma versus postoperative changes," as well as "linear calcifications in the joints suggestive of CPPD." X-rays of the left ankle found marked soft tissue swelling over the lateral malleolus with narrowed irregular sclerotic cystic changes of the right ankle mortise. Diagnosis was posttraumatic arthritis of the left knee and right ankle. The examiner then opined as follows: It is more likely than not that the left knee and the right ankle are secondary to injuries in the service during jump school. Legal criteria Service connection will be granted if it is shown that the Veteran suffers from a disability contracted in the line of duty while in active military service. 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during active military service or is secondary to a service-connected disability. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis During his 2009 C&P examination, the Veteran reported that he injured his left knee and right ankle during jump school. He added that this incident caused the delay of his graduation from jump school by one week, and maintained that he has had problems with his knees since service. Although STRs are not of record, DD-214 confirms the Veteran's participation in jump school at Fort Benning, Georgia. Thus, parachute jumps are consistent with the types and circumstances of his service and his testimony in this regard is accepted as fact. 38 U.S.C.A. § 1154(a). In this case, two private treating physicians and the 2009 C&P examiner all aver that the Veteran's current left knee and right ankle posttraumatic osteoarthritis are related to his in-service jump school. Although a 2007 C&P examiner opined that the Veteran's posttraumatic arthritis is not related to service, the Board notes that the examiner based his opinion on the premise that there was "no indication of injury significant enough to cause traumatic arthritis in either his ankles or his knees while he was in the military." However, the Board does not find this opinion, as regards the Veteran's left knee and right ankle claims, to be probative. Initially, since STRs are not of record, the 2007 examiner's opinion is obviously not based on a review of those documents. Indeed, the Veteran has provided compelling testimony to the contrary. During his 2006 Board hearing he explained that participants in jump school did not complain of pain unless they simply could not walk, which he reports did in fact occur on one notable occasion; and the Board finds the Veteran's testimony regarding the circumstances of his service to be credible. In addition, the June 2007 opinion is flatly refuted by those from three other physicians (including that from a fellow C&P examiner). As the probative evidence is decidedly in favor of the Veteran, service connection for a left knee disability and a right ankle disability is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability is granted, subject to governing criteria applicable to the payment of monetary benefits. Service connection for a right ankle disability is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND In its November 2008 remand, the Board directed that the Veteran be asked "to clarify whether all private clinical records concerning disability of the knee and ankles are now on file." The Board also requested that the Veteran be asked to "provide as much identifying information as possible concerning any Workman's Compensation claims for disability of the knees or ankles that he has filed since service discharge in December 1955, to include any claim filed for a job-related knee injury in approximately September 1987." There is no indication in the claims file that either of these requests was carried out. In accordance with Stegall, the issues of service connection for the right knee and the left ankle must be returned for full compliance with the November 2008 remand. Stegall v. West, 11 Vet. App. 268, 270-71 (holding that remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order). In addition to the foregoing, in its March 2007 remand the Board instructed that morning reports for C Battery, 319th Field Artillery Battalion, 82nd Airborne Division, at Ft Benning, Georgia, for the time period February 1953 to August 1953, be requested. In September 2009 the service department wrote that it needed the "complete name of organization to which Veteran was assigned at time of allegation." In a December 2009 file memorandum the Appeals Management Center declared that the unit information provided by the Board in its March 2007 directive corresponded to Fort Bragg; not Fort Benning. In response to a December 2009 telephone query from VA the Veteran stated that he could not recall the name of the unit that he was assigned to during jump school at Fort Benning. Courts have held that VA has a heightened duty to assist the Veteran with the development of his claim in cases, such as this, where service treatment records are unavailable. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006); cert. denied 127 S. Ct. 2265, 167 L. Ed. 2d 1093 (2007). In light of this, and inasmuch as military records (such as morning reports) may contain evidence germane to the Veteran's claims of service connection for a right knee and a left ankle disorder, a request for service personnel records is warranted in order to ascertain the complete name of the Veteran's organization at Fort Benning. Once obtained, a request for morning reports from Fort Benning for the time period February 1953 to August 1953 should be undertaken. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Request a complete copy of the Veteran's Official Military Personnel File and associate said with the claims file. Once received, ascertain the complete name of the organization to which Veteran was assigned while in jump school at Fort Benning, Georgia, and request respective morning reports for the time periods February 1, 1953, to April 30, 1953; and May 1, 1953, to August 31, 1953. 2. Ask the Veteran to clarify whether all private clinical records concerning disability of the knee and ankles are now on file. With respect to any such records that are not on file, request that he complete and return the appropriate releases (VA Form 21-4142s) for the medical records of each private care provider since military service. This should include the authorization forms for obtaining all clinical records from Dr. Rutledge and Dr. Figari, who rendered favorable medical opinions. Upon receipt of the appropriate releases, request all private treatment records indicated, if any, and associate all received with the file. If any request for private treatment records is unsuccessful, notify the Veteran appropriately. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e) (2009). 3. Request the Veteran to provide as much identifying information as possible concerning any Workman's Compensation claims for disability of the knees or ankles that he has filed since service discharge in December 1955, to include any claim filed for a job-related knee injury in approximately September 1987. This should include the claim number or other identifying information as to that claim as well as all clinical sources involved in treatment or evaluation relevant to either such injury or such claim. Obtain any Workman's Compensation decision and all associated records. 4. If, and only if, additional evidence is obtained, schedule the Veteran for a new examination and opinion regarding his claims for service connection for service connection for a right knee disorder and a left ankle disorder; or, if the Veteran prefers, send the claims file for review and an opinion regarding etiology of the claimed disorders. In either case, the claims file must be made available to the examiner for review. If a new examination is done, all indicated tests should be done, and all findings reported in detail. The examiner is then asked to opine as to whether it is at least as likely as not that a current right knee and/or eft ankle, if found, is related to service. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 5. After the requested development is completed, re-adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims 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). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs