Citation Nr: 1116295 Decision Date: 04/27/11 Archive Date: 05/05/11 DOCKET NO. 07-33 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to September 1984 and from May 1987 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the January 2011 hearing, the Veteran testified as to his belief that he has a disability of his feet that had onset during service. There is no indication that this claim has been adjudicated by the RO, therefore the Board does not have jurisdiction over it and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran had chronic headaches during service and continuously since service. 2. The Veteran has a bilateral knee disability continuously from the time of his active service until the present. 3. The Veteran has had residuals of bilateral ankle sprains continuously from the time of his active service until the present. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic headaches have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 2. The criteria for service connection for both knees have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 3. The criteria for service connection for residuals of sprains of both ankles have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that under the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may also be granted for disability if such disability was caused or aggravated by a disease or injury for which service connection has been established. 38 C.F.R. § 3.310. With chronic disease shown as such in service or during a appropriate presumptive period, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Lay evidence is sufficient to establish a nexus so long as the relationship between the in-service condition and the present condition is such that lay evidence is competent evidence. See Savage v. Gober, 10 Vet. App. 488, 497 (1997). Generally, lay evidence is competent when the issue is amenable to observation by one's senses and is of a relatively simple nature. See Davidson v. Shinseki, 492 F.3d 1372 (Fed. Cir. 2007) and Jandreau v. Shinseki, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Headaches In his April 2006 notice of disagreement the Veteran contended that he suffers from headaches as the result of his neck condition. Of note, service connection has been established for degenerative disc disease of the cervical spine, effective since June 2005. He reported in his October 2007 substantive appeal that he has had headaches for many years. He testified during the January 2011 hearing that he has been having headaches since service. He also testified that he "keep"s a low grade headache. January 2011 transcript at 3. This the Board understands as a statement that he has chronic headaches. Service treatment records show several complaints of headaches but most complaints are associated with what appears to be other acute conditions. For example, in April 2003 he complained of left ear pain, congestion, and a sore throat and was prescribed amoxicillin; in July 1991 (or 1996 as the date year is nearly illegible) he reported a runny nose and headache of one day duration. July 91 or 96 (the date is somewhat illegible) he reported a runny nose and headache of one day duration. However, in July 2004 the Veteran reported that he suffered from both neck pain and a headache. The Veteran underwent a VA examination in February 2005. He reported suffering from recurring headaches since 2001 and that these occur about three times per week. Diagnosis was recurring headaches. Notwithstanding the association of headaches with acute conditions early in his service, it is clear from the Veteran's testimony and the results of the February 2005 examination that he has suffered from chronic headaches since service. Although there are not frequent reports of treatment for headaches, it is continuity of symptomatology, not continuity of treatment, that is important in establishing a connection of a disability to service. The Board finds the Veteran's testimony to be credible and he is competent to provide evidence as to whether he experiences headaches. The preponderance of the evidence is favorable to a finding that service connection for headaches is warranted. His appeal as to this issue must be granted. Knees and ankles In an October 2007 writing, the Veteran contended that he suffers from continuous and sometimes severe pain in his ankles and knees. In an April 2009 writing he reported that he was regularly dispensed 800 mg. Motrin during service and was not aware of the existence of an underlying arthritic condition because he constantly used Motrin or acetaminophen. He stated that during the last year of his military service his health care providers stopped him from taking Motrin and Tylenol 3. In a June 2009 writing he stated that he was unclear as to the cause of his knee and ankle pain. During the Board hearing, the Veteran referred to falling and injuring one of his knees in 1988 or 1989. January 2011 transcript at 6. He stated that at that time he began complaining about his knee and thought it was arthritis because he had muscle spasms. Id. He seemed to shift to the present stating that it hurts to run and stand for a long time and acknowledged that he refers to his pain as arthritis but does not know what it is. Id. at 7. The Veteran stated that initially his claim was for arthritis of his feet but it got turned around because he was complaining about his ankle hurting and swelling up. Id. at 10. He reported that he had been seeing a podiatrist at VA to try to determine what was wrong with his ankle. Id. He testified that the podiatrist told him that he has bone spurs and arthritis of his feet and that the podiatrist called his ankle problems arthritis. Id at 10. Although during the hearing the Veteran appeared to argue that what he intended to claim as a service connected disability was a disability of his feet (and that somehow this got turned into a claim for an ankle disability), the Board notes that he did not claim that he had a service connected disability of his feet or even mention his feet until the hearing. There is no ambiguity, in this regard, in the claim that he submitted in January 2005. He claimed service connection for a neck injury, headaches, high blood pressure, scalp dermatitis, hearing loss, arthritis of the left hip, the left ankle, a knot on his left leg with a bone chip, injury of his right ankle, and injury of both knees. The Veteran was very clear. There is no mention of his feet. Therefore, the Board does not have jurisdiction over the issue of service connection for disability of his feet. His claim for a foot disability has been referred to the RO in the INTRODUCTION of the instant document. Service treatment records include that he reported a twisted left ankle in June 1987; x-rays revealed no fracture. In March 1989 he reported that he fell and scraped both knees; he was assessed with a bruised knee. In August 1992 he reported pain of his right knee of two weeks duration; he had no objective symptoms and the clinician indicated that his pain was possibly exercise related. A June 1996 report of medical examination includes that he had a normal clinical evaluation of his lower extremities. In June 1996 and June 1999 reports of medical history he did not indicate any problems with his knees or ankles. In a January 2001 report of medical history he reported chronic pain of the left ankle but also reported that he did not have knee problems. He had a normal clinical evaluation f his lower extremities at that time and it was noted that he exercised by running eight miles per week. August 2004 notes include his report of knee and ankle pain. A December 2004 report of medical examination documents normal clinical evaluations of his lower extremities but a note on this form documents that he complained of pain of both knees and, in a summary of defects and diagnoses, it is listed that he had degenerative joint disease of the knees. In an associated report of medical history he indicated that he had suffered pain of both knees, periodic swelling of his left knee, and arthritis of his left ankle for seven or eight years. These treatment notes are both favorable and unfavorable to his claim for service connection for bilateral knee and ankle disabilities. As to the earlier notes, it appears that the Veteran had acute symptoms with no residuals. However, his reports from January 2001 and later tend to show chronic symptoms involving his knees and ankles. The normal clinical evaluations tend to show that he did not have an injury or disease of his ankles or knees during service. That being said, there is attribution of his knee symptoms to arthritis in the December 2004 report. The February 2005 VA C&P examination results are also favorable and unfavorable to his claim. His report of recurring bilateral knee and ankle pain, from 1989 forward is competent and credible evidence of a continuity of symptomatology and favorable to his claims. Objective findings were negative upon examination and x-rays were normal. The measurements of his range of motion were somewhat less than normal for both ankles and both knees. In this regard, VA's Schedule for rating disabilities provides that normal flexion of the knee is to 140 degrees and normal plantar flexion of the ankle is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2010). Examination results however included that the Veteran's right knee flexion was to 100 degrees active and 110 degrees passive, left knee flexion was to 90 degrees active and 115 degrees passive, both right and left ankle plantar flexion was to 30 degrees. Thus, the Veteran had less range of motion of all four joints than is the norm. The examiner diagnosed bilateral ankle pain with a diagnosis of multiple sprains and bilateral knee pain with no arthritis shown on x-ray. Given that the Veteran was not yet discharged from active service at the time of this examination, the Board finds the diagnosis of multiple sprains resulting in ankle pain, when combined with the Veteran's testimony, to be highly probative of a finding that service connection for a bilateral ankle disability is warranted. The report of no x-ray evidence of arthritis of his knees is unfavorable to his claim. August 2005 x-rays of his knees were normal. January and February 2006 VA outpatient treatment notes include that the Veteran reported right knee and left ankle pain, had a normal gait, there was no visible abnormalities of either knee or of his left ankle. Other than mild crepitus, a slight decrease in range of motion, and a difficulty in fully extending his knee (though he fully extended the knee when walking) there were no objective abnormal findings. He was followed up in physical therapy but there were no objective abnormal findings from that report. Post-service treatment notes from the 78th Medical Group Family Practice include the Veteran's January 2007 report of arthritis problems of his knees but physical examination revealed no objective abnormalities. There are a number of reports over the next year showing no musculoskeletal problems of his lower extremities other than of his right foot. VA podiatry notes from November 2008 through December 2009 include the Veteran's reports of pain of his left ankle but mostly report problems with his feet. After considering all of this evidence, the Board finds that the preponderance of evidence is favorable to a grant of service connection for residuals of bilateral ankle sprains and a disability of both knees. Most probative is the finding of arthritis in the December 2004 report along with the Veteran's reports of pain and the reduced range of motion found on examination. ORDER Service connection is granted for headaches. Service connection is granted for a bilateral knee disability. Service connection is granted for residuals of sprains of the Veteran' bilateral ankles. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs