Citation Nr: 1228196 Decision Date: 08/15/12 Archive Date: 08/21/12 DOCKET NO. 05-27 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left lower extremity disorder. 2. Entitlement to service connection for a right knee disorder, including as secondary to a left lower extremity disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the RO in Los Angeles, California. The Veteran requested a hearing in conjunction with his appeal and was afforded a travel board hearing in September 2007 before the undersigned Veterans Law Judge. Unfortunately, the transcript of the hearing is unavailable. In December 2010, the Board informed the Veteran of this circumstance and afforded him the opportunity to have another hearing before the Board if he so desired. He was further informed that if he would not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. The Veteran did not respond within 30 days and as indicated in the Board's December 2010 correspondence, the undersigned proceeded to review the appeal. In a decision dated March 2011, the issue involving service connection for a left lower extremity disorder was reopened, and along with the issue of service connection for a right knee disorder were both Remanded to the RO for further development which included obtaining medical records and opinions. The requested development was completed and the appeal has been returned to the Board for final adjudication. The Board observes that some of the Veteran's VA outpatient treatment records are only available on the Virtual VA system. FINDINGS OF FACT 1. The competent evidence of record supports a finding that the Veteran has a current left lower extremity disability, identified as traumatic neuropathy that was incurred during a fall in service. 2. The competent evidence of record supports a finding that the Veteran's right knee osteoarthritis was caused by abnormal weight-bearing resulting from the service-connected left lower extremity disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for a left lower extremity disability have been met. 38 U.S.C.A. § 1110 (West 2002& Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. With resolution of reasonable doubt in favor of the Veteran, t he criteria for service connection for a right knee disability have been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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 need not be further considered. Service Connection In the present case, the Veteran claims that he has a left lower extremity disorder that was caused by a fall in service and a right knee disorder that was caused by the left lower extremity disorder. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Lower Extremity The Veteran claims service connection for a left lower extremity disorder that he contends was caused by a fall in service. A medical board at the time of his discharge from service had concluded that the Veteran's left lower extremity was likely due to a preexisting disability. However, he claims that he did not have any preexisting disability when he entered service, and that if he did, it was not noticeable prior to service and must have been aggravated by service. Where a veteran served during a period of war or during peacetime service after December 31, 1946, he or she is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2011). In the present case, no left lower extremity disorder was noted on the Veteran's entrance examination. Therefore, he is presumed to have been in sound condition. Subsequent service treatment records indicate that the Veteran's left lower extremity disorder was likely due to residuals of polio. However, the Board finds that there is no clear and unmistakable evidence of a preexisting disorder that affected the Veteran's left lower extremity when he was examined and accepted for service. The Veteran's August 1965 service entrance examination did not reveal any preexisting left lower extremity disorder. The Board acknowledges that nearly a year later, in July 1966, the Veteran sought treatment for weakness and numbness of the left lower extremity and reported that he had felt such weakness for the last few years. Physical examination revealed that the Veteran's left thigh was significantly shorter than his right thigh and smaller in circumference. The service physician opined that the symptoms were secondary to a neuromuscular disease and likely residuals of polio even though the Veteran denied a history of polio. An August 1966 medical board also determined that his disorder was probably residuals of polio and that he did not meet the minimum standards for enlistment or induction. The medical board determined that he was unfit for service and that the probable duration was permanent. Further, the medical board determined that the disorder was not incurred in service. However, the Board is not bound by the service medical board findings. See Horn v. Shinseki, __ Vet.App. __ (June 21, 2012), 2012 WL 2355544 (Vet.App.). In Horn, the Court held that in cases regarding presumption of soundness, adjudicators could not deny claims based on medical evaluation board reports containing no supporting analysis. The medical board findings at present are based on the Veteran's symptoms noted after he had active service for nearly a year and the Veteran's statements that he had experienced weakness prior to service. The same symptoms were not noted on his entrance physical examination. Given the lack of any medical or lay evidence of a preexisting disability, the Board finds that the medical board findings are insufficient to constitute clear and unmistakable evidence of a preexisting disability. The Board acknowledges that a mere self-report of a preexisting condition, such as the Veteran's report of left lower extremity weakness for a few years prior to the 1966 treatment, is not an adequate basis for rebutting the presumption of soundness upon service entrance. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a Veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A. § 1111). However, there is no strict standard that a self-report without contemporaneous clinical evidence can never rebut the presumption of soundness. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) (noting that in cases in which a later medical opinion is based on statements made by the veteran about the preservice history of his condition, contemporaneous clinical evidence and recorded history may not be necessary). Importantly, the Board observes that the Veteran's report of weakness for a few years prior to the 1966 treatment record is not a report of a history of polio or sufficient evidence to demonstrate that whatever the Veteran had prior to his military service was actually polio. In fact, the Veteran has specifically denied a history of polio. Thus, the Board does not find that the self-report of left lower extremity weakness, by itself, amounts to clear and unmistakable evidence of a preexisting disability which would be sufficient to rebut the presumption of soundness. The Board acknowledges that VA outpatient treatment records dated in May 1979 involving a nerve conduction study contained a notation that the study results were compatible with old polio. However, the May 2011 VA examiner (neurologist) opined that she could not find any significant history of polio. She also found no evidence of post-polio syndrome explaining that the Veteran did not have the slowly progressive muscle weakness, fatigue and decrease in size of muscles that is consistent with post-polio syndrome. The Board places a high probative value on the May 2011 VA opinion as the examiner addressed post-polio syndrome effects and opined that upon physical examination, those effects were not present. Significantly, the examiner reached this conclusion after having reviewed the Veteran's claims file, which included his service treatment records. The Board also acknowledges an August 2007 opinion by a private physician, Craig Bash, M.D., that the Veteran may have had a history of polio that was permanently worsened in service. As Dr. Bash's opinion regarding a preexisting disability was not definitive, the Board finds that it does not represent clear and unmistakable evidence of a preexisting disability. As such, the Board places no probative value on the August 2007 opinion regarding the existence of a preexisting disability. The Board has also considered the Veteran's statements, as well as those of his high school principal, that he was in top physical shape shortly before he joined the military. In this case, the Veteran and his high school principal are competent to report their observations as they come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran and his principal are competent to report about the Veteran's pre-service physical abilities to run track and play football. Considering all of the evidence, the Board finds that there is not clear and unmistakable evidence that the Veteran had a preexisting left lower extremity disorder. Having found that the presumption of soundness has not been rebutted, the Board has considered whether the Veteran's claim succeeds on a direct basis as his condition having been incurred in service, and finds that the criteria for service connection of a left lower extremity disability have been met. As noted above, service treatment records reflect that beginning in July 1966, the Veteran was treated on several occasions for complaints that his left leg would not hold his weight, that his muscles in the left leg were weaker than in the right leg, and that his left lower leg gave way. Treatment records also reflect positive trendelenburg in the left leg as well as weak abductor muscles and dorsiflex perineal muscles in the left leg. As mentioned above, the Veteran was discharged due to his left lower extremity disorder. Further, the Veteran has competently and credibly reported that he fell in a hole in service. Thus, Shedden element (2) has been met. Post-service treatment records indicate complaints of left lower extremity symptomatology including weakness, numbness and burning. The May 2011 VA examiner diagnosed left lower extremity traumatic neuropathy. Thus, Shedden element (1) has been met. Next, service connection is warranted when a nexus is shown between service and a current disability. Significantly, the May 2011 VA examiner determined that the Veteran's current left leg traumatic neuropathy was due to a fall in service. The examiner conducted a physical examination of the Veteran, review of the claims file and service treatment records, and determined that the explanation for the Veteran's current problems was that he had sustained a fall in service. Moreover, the evidence suggests that the Veteran has experienced a continuity of symptomatology since service as he has reported left lower extremity symptoms to VA since October 1966. The Board notes that the Veteran is competent to report symptoms of left lower extremity weakness, numbness, and burning as these symptoms come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has no reason to doubt the Veteran's credibility in reporting these symptoms. That said, the Board finds no adequate basis to reject the competent medical evidence and the private treatment records that are favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). As such, service connection for a left lower extremity disability is granted. Right Knee Having determined that the left lower extremity disability is service-connected, the Board turns to the Veteran's claim that his right knee disorder was caused by his left lower extremity disability. In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2011). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the Veteran filed his claim prior to October 2006, the more stringent requirements do not apply. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, all of the elements of Wallin have been met. Specifically, VA outpatient treatment records reveal that the Veteran was diagnosed with osteoarthritis in the right knee in April 2001. As discussed above, his left lower extremity disorder is service-connected. Thus, Wallin elements (1) and (2) have been met. Next, regarding Wallin element (3), two medical opinions of record relate the right knee disorder to the left lower extremity disorder. The Board places a high probative value on the April 2011 VA examination report in which the VA examiner determined that the Veteran's right knee disorder is related to the left lower extremity neuropathy. The examiner reasoned that the Veteran's left lower extremity disability caused abnormal weight bearing which led to the right knee disability. Additionally, the August 2007 private physician, Craig Bash, M.D., opined that the right knee osteoarthritis is likely due to the fact that the Veteran's left leg became somewhat dysfunctional and he likely placed a great deal of weight and extra stress on the right knee thereby causing it to prematurely develop osteoarthritis. The basis for his opinion was that the Veteran's left leg had been persistently weakened due to his military service; he has MRI documented advanced right knee osteoarthritis ; his osteoarthritis in his right knee is out of proportion to his age without antecedent micro/macro trauma; his years of abnormal gait due to his left leg problems are the source of his right knee micro trauma and therefore the cause of his early osteoarthritis in his right knee; and his record does not contain a more likely etiology for his right knee pathology. The Board acknowledges that the private physician did not physically examine the Veteran in order to reach this conclusion, however, as the opinion is consistent with the April 2011 VA examination opinion noted above, the Board finds no reason to reject the private opinion. The Board finds no adequate basis to reject the competent medical evidence and the private treatment records that are favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). As such, service connection for a right knee disability is granted. ORDER Entitlement to service connection for a left lower extremity disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. Entitlement to service connection for service connection for a right knee disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs