Citation Nr: 1120116 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 10-01 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right patellofemoral pain syndrome and chondromalacia. 2. Entitlement to an initial disability rating in excess of 10 percent for mixed tension and migraine headaches. 3. Entitlement to service connection for left patellofemoral pain syndrome with patellar tendinitis and IT band syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from May 1998 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in September 2009, a statement of the case was issued in November 2009, and a substantive appeal was received in January 2010. The Veteran testified at a Board hearing in January 2011. A transcript of that hearing is of record. The issue of entitlement to an initial disability rating in excess of 10 percent for mixed tension and migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On the record at the January 2011 Board hearing, the Veteran withdrew the appeal of the issue of entitlement to an initial disability rating in excess of 10 percent for right patellofemoral pain syndrome and chondromalacia. 2. Left patellofemoral pain syndrome with patellar tendinitis and IT band syndrome manifested during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to an initial disability rating in excess of 10 percent for right patellofemoral pain syndrome and chondromalacia. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. Left patellofemoral pain syndrome with patellar tendinitis and IT band syndrome was incurred during active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissal of Claims Withdrawn Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. Regarding the issue of entitlement to an initial disability rating in excess of 10 percent for right patellofemoral pain syndrome and chondromalacia, the Veteran withdrew her appeal of this matter on the record at the beginning of the January 2011 Board hearing, as documented in the hearing transcript. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and this issue is dismissed. Service Connection The Veteran is claiming service connection for a left knee disability. Applicable law provides that service connection will be granted if it is shown that the veteran 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; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. The Veteran contends, as explained in her January 2011 Board hearing testimony, that her left knee disability developed due to the same causes as her already service-connected right knee disability. The Veteran testified that her knees began to hurt following her participation in a marathon during her active duty service. The Veteran testified that although her right knee symptoms were more significant than her left knee symptoms (resulting in the fact that the in-service documentation focuses upon the right knee), medical caregivers during service nevertheless treated her complaints of pain in both knees. The Veteran's active duty service concluded in August 2007, and she filed her claim of entitlement to service connection for disabilities of both knees in June 2008. In September 2008, the Veteran attended a VA examination in connection with her claims, and was diagnosed with bilateral patellofemoral pain syndrome, right worse than left, with documented chondromalacia of the right knee. The Veteran was additionally diagnosed with bilateral patellar tendinitis and IT band syndrome. No pertinent etiology opinion was presented in the August 2007 VA examination report. The report does show, however, that the Veteran described her symptom history at that time with details consistent with her testimony at the January 2011 Board hearing. The Veteran explained that the onset of her bilateral knee pain was sometime in 2004 while she was training for an Air Force marathon. The Veteran is diagnosed with a current left knee disability, corresponding with her service connected right knee disability. There is clear contemporaneous documentation that the Veteran complained of symptoms in both knees at least as early as June 2008, when she filed the service connection claim 10 months after separation from active duty service. The problem with the Veteran's left knee service connection claim has thus far been that the RO found in-service documentation of a right knee injury, but did not find any in-service documentation of a corresponding left knee injury. The Board's review of the Veteran's service treatment records indeed does reveal several reference to a right knee injury, including diagnostic imaging done for the right knee in 2007. A series of service treatment records from October 2006 to December 2006 shows that the Veteran was seen for a medical consultation regarding "OLD DISRUPTION OF LATERAL COLLATERAL LIGAMENT RIGHT." These records show that the Veteran had been experiencing the right knee pain since she ran in the Air Force marathon two years prior. The only finding concerning the left knee was that the left knee had a normal range of motion. The Board finds that the service treatment records do confirm the Veteran's testimony of experiencing at least right knee pain during service with onset in 2004 in connection with running the Air Force marathon. The essential question is whether the evidence shows that the Veteran also had in-service onset of left knee symptoms associated with her current left knee disability. In this regard, the Board notes that there is no medical evidence directly addressing left knee symptomatology. However, significantly, there is contemporaneous evidence indicating that the Veteran did experience left knee symptoms during service: the Veteran's May 2007 service separation medical history questionnaire shows that the Veteran was asked to identify if she had "[b]een diagnosed with any medical condition that requires any special or continuous treatment?" In response, the Veteran hand-wrote the response "arthritis in the knees - glucosamine." The Board finds that this contemporaneous evidence probatively shows that the Veteran was undergoing treatment for symptoms she perceived in both of her knees during her active duty service. The September 2008 VA examination report reasonably attributes the Veteran's complaints of knee pain to a current diagnosis of bilateral knee disability. The Board finds that the evidence reasonably establishes continuity of the pertinent symptomatology dating back to onset during the Veteran's active duty service: her bilateral knee complaints are shown in May 2007 at the conclusion of her active duty service and at the time of her filing the claim for service connection in June 2008, and her testimony since that time maintains the continuity of the pertinent symptomatology. The Board notes that the Veteran is shown to have reported arthritis-like symptoms in both of her knees during service, and those symptoms were later clearly diagnosed as bilateral knee disabilities by the September 2008 VA examination. The May 2007 service separation medical history questionnaire actually indicates that the Veteran recalled being diagnosed with a bilateral knee disability. She has further testified during her January 2011 Board hearing that her in-service medical treatment included treatment and consultation regarding both of her knees. The Board observes that in the context of lay testimony concerning a contemporaneous medical diagnosis said to have been rendered by a medical professional, the Veteran's lay testimony may be considered competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (finding that lay evidence can be competent evidence to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Accordingly, based on the evidence indicating in-service left knee symptoms that were diagnosed as chronic left knee disabilities by a medical professional less than a year following service, when resolving all benefit of the doubt in favor of the Veteran, the Board finds that service connection is warranted for left patellofemoral pain syndrome. See 38 U.S.C.A. § 5107(b). Under the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision as it relates to the issue of entitlement to service connection, the satisfaction of VCAA requirements is rendered moot. The Board does note that the RO furnished notice of the manner of assigning disability ratings and an effective date by letter in June 2008. The Veteran will have the opportunity to initiate an appeal as to these 'downstream' issues by filing a notice of disagreement to the rating decision which will be issued by the RO in giving effect to this grant of service connection. ORDER The claim of entitlement to an initial disability rating in excess of 10 percent for right patellofemoral pain syndrome and chondromalacia, has been properly withdrawn from this appeal by the Veteran. Thus, this issue is dismissed. Service connection for left patellofemoral pain syndrome is warranted. To this extent, the appeal is granted. REMAND Briefly, the Veteran contends that the disability rating assigned for her service-connected headache pathology does not accurately reflect the severity of her disability. The Veteran's January 2011 Board hearing testimony featured her clear contention that her service-connected headache pathology has increased in severity since her last pertinent VA examination, which was administered in March 2010. In this regard, the Board notes that the Veteran testified to a substantial increase in the frequency and severity of her headache attacks, including recently experiencing symptoms described in terms suggesting debilitation; the Veteran described these episodes in terms of a 'panic attack' associated with the headache, raising some medical questions as to the nature of the episodes described. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Under the circumstances, the Board finds that another VA examination is appropriate. Additionally, the Board notes that the Veteran reported during her January 2011 Board hearing that she expected to have an appointment with a private medical provider concerning her headache pathology. On remand, the RO should send the Veteran a notice with the proper authorization forms so that VA may request records from this private provider on her behalf. Accordingly, the case is REMANDED for the following action: 1. The Veteran reported during her January 2011 Board hearing that she expected to have an appointment with a private medical provider concerning her headache pathology. On remand, the RO should send the Veteran a notice with the proper authorization forms so that VA may request records from this private provider on her behalf. 2. The Veteran should be scheduled for an appropriate VA medical examination to ascertain the severity of her service- connected headache pathology. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All indicated studies, tests, and evaluations deemed necessary by the examiner should be performed. All results of any such studies, tests, or evaluations must be included in the examination report. The following questions should be addressed: (a) Does the Veteran currently have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability?; (b) Does the Veteran currently have characteristic prostrating attacks occurring on an average once a month over the last several months?; (c) Does the Veteran currently have characteristic prostrating attacks averaging one in 2 months over the last several months?; or (d) does the Veteran currently have less frequent attacks? The examiner should comment on whether or the extent to which this disability impacts the Veteran's occupational functioning. The examiner should provide a complete rationale for all conclusions reached. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. Thereafter, the RO should review the expanded record and determine if the benefit sought can be granted. If the benefit sought on appeal is not granted, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2010). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs