Citation Nr: 1123946 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-32 551 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a left knee condition. 2. Entitlement to service connection for a right knee condition. 3. Entitlement to a fee basis (non-VA) referral. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision, which denied a claim for entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty; a November 2009 RO decision, which denied claims for service connection for a left knee condition and a right knee condition; and a November 2009 administrative decision, which denied entitlement to fee-basis (Non-VA) referral. In November 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Hartford, Connecticut, RO. A transcript of the hearing is of record. The record reflects that additional medical records were submitted to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. Additionally, the Board notes that additional evidence was received after the statement of the case (SOC) was issued with respect to the issues of entitlement to service connection for a left knee condition and a right knee condition. However, as these issues are either being granted or remanded for further development, the Board finds there is no prejudice to the Veteran in proceeding to adjudicate the claims below. Furthermore, the Board notes that the Veteran indicated in a September 2009 Report of Contact that he wished to file a claim for a temporary 100 percent evaluation due to being in the hospital for his left knee replacement. It was specifically noted in the November 2009 rating decision that entitlement to a temporary total rating based on hospitalization or surgery necessitating at least one month of convalescence has not been established. As will be discussed below, the Veteran's claim for service connection for a left knee disability is being granted in full. Therefore, as the issue of the appropriate rating to assign to this service-connected disability is being returned to the RO for consideration, the Board finds the Veteran's claim for entitlement to a temporary total rating based on hospitalization or surgery necessitating at least one month of convalescence should be considered in conjunction with the assignment of an evaluation for this disability. Therefore, the issue of entitlement to a temporary total rating based on hospitalization or surgery necessitating at least one month of convalescence has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a right knee condition, entitlement to a fee basis (non-VA) referral, and entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty 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. FINDING OF FACT Resolving doubt in favor of the Veteran, his left knee disability is shown to be causally or etiologically related to his military service. CONCLUSION OF LAW Service connection for a left knee disability is warranted. See 38 U.S.C.A. § 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for a left knee disability, the benefit sought on appeal has been granted in full, as discussed in the following decision. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in 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) (2010). Service connection may also 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) (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Specifically, the Veteran asserted at the November 2010 hearing that he lifted and carried heavy equipment during service and his in-service occupation required him to jump around planes frequently. The Veteran also asserted that he had to parachute once a month for 7 years. A review of the service treatment records reveals no complaints, treatment, or diagnoses of a left knee disability. With regard to a current disability, the Board notes that a December 2010 private medical record from Somers Orthopaedic Surgery & Sports Medicine Group, P.L.L.C. reflects that the Veteran underwent a left knee replacement in 2009 with revision in 2010 and the Veteran was diagnosed with arthrofibrosis status post knee arthroplasty. This physician stated that, in his opinion, within a reasonable degree of medical certainty, the eventual need for knee surgery and the arthritis that he has experienced is secondary to the activity he participated in over many years in his military career. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2010). The Board notes that the Veteran's service treatment records are absent any references to knee complaints. Regardless, in light of the fact that the Veteran has a current diagnosis of a left knee disability, and the only medical opinion of record on the matter has related his current left knee disability to his active duty service, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran has a current left knee disability as a result of his active duty service. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for his left knee disability. ORDER Entitlement to service connection for a left knee condition is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND The Veteran is seeking entitlement to service connection for a right knee condition, entitlement to a fee basis (non-VA) referral, and entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. Specifically, the Veteran asserted at the November 2010 hearing that he lifted and carried heavy equipment during service and his in-service occupation required him to jump around planes frequently. The Veteran also asserted that he had to parachute once a month for 7 years. A review of the service treatment records reveals no complaints, treatment, or diagnoses of a right knee disability. With regard to a current right knee disability, the Board notes that a January 2009 VA treatment record reflects that the Veteran has degenerative joint disease of the knees bilaterally. As an initial matter, the Board notes that the Veteran indicated at the November 2010 hearing that he was receiving Social Security Administration (SSA) benefits. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This includes a duty to assist the Veteran in obtaining records in the custody of federal government agencies. Id. See also Tetro v. Gober, 14 Vet. App. 110 (2000). Therefore, this issue must be remanded in order to obtain any available SSA records that could potentially relate to the Veteran's knee disabilities. Further, the Board notes that the Veteran indicated at the November 2010 hearing that he sought treatment for knee complaints at a VA facility in St. Petersburg, Florida, from 1981 to 1989. These records have not been associated with the claims file. The Veteran also indicated at the November 2010 hearing that he sought treatment at Wright-Patterson Air Force Base, Griffiss Air Force Base, and Warren Air Force Base. VA has an obligation under the VCAA to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2010). Therefore, all of the Veteran's VA treatment records from the VA facility in St. Petersburg, Florida, to particularly include the treatment records from 1981 to 1989, should be obtained and associated with the claims file, as well as any recent VA treatment records from the VA Healthcare System in Connecticut that have not yet been associated with the claims file. Additionally, the RO should ensure that all relevant treatment records from Wright-Patterson Air Force Base, Griffiss Air Force Base, and Warren Air Force Base have been associated with the claims file. Additionally, the Board notes that an April 2010 Report of General Information reflects that relevant medical records could be available from Danbury Hospital. The Veteran also indicated at the November 2010 hearing that he has seen 4 civilian physicians for his knee complaints, to specifically include a Dr. S from New York City. In a November 2009 statement, the Veteran indicated that he was treated by a nurse from Danbury Hospital Associates. As such, these records should be obtained as well. After all aforementioned records have been obtained to the extent possible, the Veteran should be scheduled for a VA examination to determine whether he has a current right knee disability of any kind, and, if so, whether this current right knee disability was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Finally, with regard to the Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty, the Board notes that the Veteran was denied this claim in a June 2010 rating decision. At the November 2010 hearing, the Veteran and his representative indicated that they believed that this claim was on appeal before the Board. While it was determined that this issue had not been properly appealed to the Board, the Board will construe this hearing transcript as a notice of disagreement (NOD) with the June 2010 rating decision. Therefore, an SOC must be issued with respect to this claim. Furthermore, the Board notes that the Veteran was denied entitlement to a claim for a fee basis (non-VA) referral in November 2009. The Veteran submitted a NOD to this denial in November 2009. An SOC was also not issued with respect to this issue. Therefore, these claims must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). The issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a SOC as to the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for left total knee arthroplasty and the issue of entitlement to a claim for a fee basis (non-VA) referral. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed, the claims should not be certified to the Board. 2. Associate with the claims file any and all of the Veteran's SSA records. Specifically, any SSA records concerning benefits awarded for knee disabilities of any kind must be obtained. 3. Associate with the claims file any and all relevant VA treatment records that have not yet been associated with the claims file, to specifically include any recent treatment records from the VA Connecticut Healthcare System that have not yet been associated with the claims file. Additionally, any relevant treatment records from the VA facility in St. Petersburg, Florida, should be obtained, to specifically include treatment records from 1981 to 1989. 4. Obtain any and all relevant treatment records that have not yet been associated with the claims file from Wright-Patterson Air Force Base, Griffiss Air Force Base, and Warren Air Force Base. Associate any records received, including negative responses, with the claims file. 5. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any medical records relating to the issues on appeal that have not yet been associated with the claims file. Attempts should be made to obtain medical records from Danbury Hospital, from Dr. S in New York City referred to in the November 2010 hearing transcript, from Danbury Hospital Associates, and from any other private medical professionals who treated the Veteran's knee disabilities. The RO should also invite the Veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. Associate any records received, including negative responses, with the claims file. 6. After all relevant records have been obtained to the extent possible, schedule the Veteran for an appropriate VA examination for his claimed right knee disability. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms and onset relating to his claimed right knee disability. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should render an opinion as to whether the Veteran currently has a right knee disability of any kind. If so, an opinion should be provided as to whether it is at least as likely as not that any of the Veteran's current right knee disabilities were caused or aggravated by his active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 7. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the most SOC. If the benefits sought on appeal remain denied, he and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). These claims 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs