Citation Nr: 1230291 Decision Date: 09/04/12 Archive Date: 09/10/12 DOCKET NO. 97-27 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a left knee disability. (The appeals of whether new and material evidence has been submitted to reopen a claim for service connection for a heart disability other than ischemic heart disease, and entitlement to an effective date prior to August 25, 2005 for service connection for bursitis of the right shoulder will be addressed in a separate decision. REPRESENTATION Veteran represented by: Daniel G. Krasegnor, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1962 to May 1983. This appeal was were previously before the Board of Veterans' Appeals (Board) from May 1996 and July 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In an October 2002 decision, the Board denied the claims on appeal, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2003 Order, the Court granted a June 2003 Joint Motion to Vacate and Remand the October 2002 Board decision in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). In July 2004 and November 2005, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for further development. In April 2008, the Veteran (through counsel) filed a petition for extraordinary relief in the nature of a Writ of Mandamus with the Court. In substance, the Veteran sought to compel VA to act expeditiously in light of the Court and BVA remands issued in his case and to compel VA to provide him with a supplemental statement of the case (SSOC). The Court issued an Order in July 2008, requesting a response from VA to the petition within 30 days of the date of the Order. In August 2008, the RO issued a SSOC readjudicating the issues on appeal and thereafter returned the file to the Board. Accordingly, this matter, having been resolved, need not be further addressed. The appeal was returned to the Board in August 2009, at which time it was determined that further development was still required and the appeal was again remanded. The requested development has been completed, and the appeal has been returned to the Board for further appellate review. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2012. A transcript of this hearing is contained in the claims folder. The Veteran is represented by an attorney in this appeal. However, as the Veteran is pro se in two other appeals, those issues will be addressed in a separate Board decision. FINDINGS OF FACT 1. The Veteran was seen on many occasions during service for left leg pain, with an additional complaint of left knee pain in April 1973 and frequent reports of joint pain on his Report of Medical History forms. 2. Post service medical records contain a diagnosis of arthritis in April 1993, which is nearly two years prior to the Veteran's post service injury. 3. The Veteran has a current diagnosis of tricompartmental arthritis, and the medical opinions that relate this disability to repetitive traumas sustained by the Veteran during his 20 years of active service are in relative equipoise with those that find there is no such relationship. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, a left knee disability was incurred due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (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 the claim. The Board finds that the duty to notify and duty to assist the Veteran has been met in this case. Furthermore, given the favorable nature of this decision, any failure in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the Veteran. Service Connection The Veteran contends that he has developed a left knee disability as a result of active service. He believes this disability is the result of an injury he sustained while playing baseball during service. The Veteran notes that his service treatment records contain frequent references to left leg pain, a specific reference to left knee pain, and that he reported joint pain on the Reports of Medical History he completed throughout the remainder of his over 20 years of active service. He acknowledges that he sustained an additional injury many years after service but contends that a left knee disability was already present at that time. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient 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 medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If degenerative arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service treatment records show that the Veteran complained of left leg pain in September 1970. December 1970 records state that the Veteran had complaints of left calf pain. He had twisted his body while playing baseball in March 1970. This resulted in the immediate onset of left hip pain, which resolved in a few days. However, left calf pain had begun in September 1970 and in November 1970 there was a recurrence of left hip and left leg pain with paresthesia in the lateral aspect of the leg and foot. The diagnosis was probable lumbar nerve root irritation. May 1972 treatment records reveal that the left calf measured nearly an inch smaller than the right calf. There was some loss of sensation. The examiner thought that there might be a disc problem as there was no other obvious prognosis. June 1981 treatment notes show that the Veteran complained of lower back pain with left lower leg pain. The assessment was L4 to L5 disc syndrome. Several Report of Medical History forms were completed by the Veteran in conjunction with his periodic physical examinations subsequent to the 1970 injury. He answered "yes" to swollen or painful joints in December 1971; June 1972; April 1973; October 1976, December 1979, and on the form completed as part of his April 1983 retirement examination. The physician's elaboration in April 1973 noted that the left knee was painful. The elaborations on the other forms state that the left leg pain was related to back problems. It should be noted that the Report of Medical Examination forms that were completed at the same time as these histories, including the April 1983 retirement examination, all show that the lower extremities were normal, and do not identify a left knee disability. Post service medical records include the report of a July 1983 VA examination. The Veteran reported that he continued to experience left leg pain. Following examination, the diagnoses included back pain with history of radiation of pain. Additional post service medical records include an April 1993 VA treatment record that shows the Veteran was seen for knee pain. He reported his knees had been painful for 10 days after performing some physical work. The Veteran reported some swelling which was no longer present. There was no tenderness and a good range of motion. The impression was arthritis. An X-ray study of the left knee conducted at this time showed no significant bone or joint abnormality. An Additional DA Form 3647 from April 1993 includes a diagnosis of popliteal synovial cyst of the left leg. Private medical records show that the Veteran sustained an injury to his left knee at work in February 1995. The Veteran reported to his private doctor that he had been pulling a cage that was loaded with mail when it apparently got stuck, at which point he twisted his left knee and heard it pop. Although he was initially told that his knee was normal, his symptoms persisted and it was discovered in an April 1995 magnetic resonance imaging (MRI) study that he had a torn cartilage. May 1995 records from one of the Veteran's private physicians, A.C., M.D., indicate that the results of an April 1995 MRI study were explained to the Veteran. There was evidence of a tear involving the lateral meniscus with evidence of a meniscal cyst, synovitis, and a Baker's cyst. The ligaments appeared intact. Dr. A.C. explained to the Veteran that his tear was probably caused by his job, but that the cyst and degenerative changes of the lateral meniscus pre-existing his work related injury. Operative records and other medical records confirm that the Veteran underwent surgery of his left knee in June 1995 and in March 1996. The Veteran was afforded a VA fee basis orthopedic examination in March 2005. The history of complaints and treatment in service were noted, as was his post service injury and surgeries. Following a discussion of the Veteran's history, his treatment by various private examiners, and an examination, the diagnoses included bilateral knee osteoarthritis, left and right. The examiner stated that based on the records forwarded to him, in his opinion he was not under the impression that his osteoarthritis was service related. The examiner did not provide any further reasons or bases for the opinion. In a letter dated September 2005, one of the Veteran's private doctors, J.T.M., M.D., stated that the current diagnosis of the Veteran's left knee condition was advanced tricompartmental arthrosis of the left knee. He felt that with reasonable medical certainty that the Veteran sustained injuries to his meniscal cartilage between 1962 and 1983 which led to the need for arthroscopic intervention. He also had an open meniscectomy which was felt to have led to the development of arthrosis. The doctor further opined that it was more likely that the arthritic condition of the left knee developed after the Veteran left service. However, the doctor believed that the Veteran did have significant symptomatology leading to the need for arthroscopic intervention due to meniscal injuries sustained while in service. In support of this opinion, he added that it was well documented that on standing 50% of the force goes through the menisci and when the knee was flexed up to 95% of force could go through the menisci. With the repetitive activities required by being a serviceman, one could experience significant pathology of the menisci which would eventually lead to tears. These tears could then start the arthritic process leading to degenerative arthrosis. The Veteran was afforded a VA examination of the joints in January 2006 by J.M., M.D. The examiner stated that the Veteran's claims folder and extensive military medical records had been reviewed. The issue of causality regarding the left knee was complicated by having sustained a work related injury to the left knee after service in 1995. This had led to at least two arthroscopic surgeries. This was due to a damaged meniscus but also a reported finding of an extensive area of articular cartilage damage on the medial femoral condyle described as a crater. The VA examiner noted the September 2005 letter from Dr. J.T.M, and said he interpreted it as suggesting that the Veteran had been subjected to repetitive low grade wear and tear on the meniscus during service but that the work related injury after service was the cause of his arthritic condition. Following the examination, the diagnoses included advanced degenerative arthritis, tricompartmental, left knee. In the discussion, the examiner stated that there was no question but that the Veteran had advanced degenerative tricompartmental arthritis of the left knee joint, and he repeated the opinion from Dr. J.T.M. However, he did not express his own opinion as to the etiology of the disability. In a February 2006 addendum, VA examiner Dr. J.M. noted his January 2006 examination, and said on that occasion he could find no indication of there being significant problems related to any in-service injuries or any treatment of problems related to the major peripheral joints of both upper and lower extremities. The Veteran's medical records were reviewed by a private examiner, C.N.B., M.D., in March 2007. It was noted that the review included service treatment records, post service medical records, imaging reports, the Veteran's lay statements, other medical opinions, and medical literature. Dr. C.N.B. stated that the Veteran had a left knee injury in service in March 1970 as he had pain in his calf with his twisting injury. A twisting injury was exactly the type of injury that causes knee injuries and often this pain can be referred to the calf. He had left knee pain from September to December 1970, again in 1973, and on subsequent occasions in 1984, 1986, and 1987. The Veteran was noted to have then sustained an additional injury which required surgical intervention. Dr. C.N.B. said that he agreed with the September 2005 opinion of Dr. J.T.M., and that it was his own opinion that the Veteran would not have sustained as serious of a post service left knee injury if he had not already injured his knee in service. In other words, the knee injury in service had predisposed the knee to further injury. Dr. C.N.B. opined that the Veteran's left knee degenerative arthritis is in significant part due to his service time injuries and the associated secondary problems that had ensued over the years due to the initial service inquiry. It was his opinion that left knee arthritis was most likely due to the initial injuries in service, and that the post service injuries would not have happened or been as significant without the in-service injuries. The Veteran was provided a review of his claims folder by a VA examiner in February 2010. The examiner stated that the private medical reports had been reviewed. Significant evidence was said to be the June 1983 separation of duty examination that had noted painful joints in 1970, the records from Dr. A.C., and VA neurology notes regarding left foot neuropathy. The examiner opined that it was at least as likely as not that the Veteran's arthritis of the left knee was incurred in or due to service. The rationale was that arthritis of the left knee could start from rainy weather in Vietnam, multiple strains. The Veteran was provided another review of his claims folder by a VA examiner in November 2011. The claims folder was reviewed by the examiner. The examiner opined that the Veteran's left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale for this opinion as that there was only one complaint of any left leg discomfort during service and this was attributed to back issues and sciatica. The rest of the service treatment records were silent for any issues related to the left knee. The examiner stated that the opinions expressed that the Veteran's left knee issues could be traced to a rotational movement of the left leg and calf pain secondary to shoe removal were conjecture and did not rise to the level of 50 percent probability. The rationale was that any injury significant enough to cause referred calf pain would have led to complaints in service following the event. The Veteran also had documented knee injury after service, which was the most likely source of the tricompartmental arthritis that was diagnosed. There were no exit physicals that documented any left knee pain, and no medical records to support any left knee complaints within the first year after service. This rationale was repeated in a January 2012 addendum. After careful consideration, the Board finds that the evidence both for and against the Veteran's claim is in relative equipoise, and that therefore entitlement to service connection for a left knee disability is warranted. The record clearly establishes that the Veteran has met the evidentiary burden of demonstrating that he current has a left knee disability. The fact that he has a well established diagnosis of tricompartmental arthritis is not in dispute. However, what is less clear is whether or not that Veteran sustained a left knee disability during service and, if so, whether or not his current disability is the result of that disability. The record contains three opinions that relate the Veteran's current left knee disability to active service, and a fourth that states a left knee disability existed prior to the 1995 work injury. The September 2005 private opinion from Dr. J.T.M. basically says that while the Veteran's arthritis began after he left service, it was at least as likely as not that this arthritis was the result of injuries sustained to the meniscus as a result of the repetitive low grade wear and tear on the meniscus due to the activities a serviceman would be expected to perform. The March 2007 opinion from Dr. C.N.B. notes that he agrees with this opinion, and adds basically that the twisting injury the Veteran sustained to his left knee in 1970 weakened the ligaments and predisposed him to the post service injury. Finally, the February 2010 VA examiner related the Veteran's left knee disability to service due to rainy weather in Vietnam, where the Veteran's records confirm that he served, and to multiple strain. In as much as these opinions suggest that the Veteran had a left knee disability prior to his 1995 work-related injury, they are supported by the April 1993 VA treatment records with a diagnosis of arthritis and the May 1995 record from Dr. A.C. stating that a Baker's cyst and degenerative changes of the left knee existed prior to his work injury. The problem with these opinions is that none of them address the finding in service that the Veteran's leg pain was the result of an injury to the back. The March 1970 opinion in particular refers repeatedly to a twisting injury of the left knee when in fact the service records show that the twisting injury was to the Veteran's body. The Veteran's Report of Medical History forms repeatedly explain the Veteran's references to pain as due to the back. In fact, it appears that the Veteran himself provided this explanation at times. However, the failure to address the back injury does not completely negate these opinions, as they are also based in part on a belief that repeated traumas resulting from the normal wear and tear of a serviceman for 20 years were the cause of the Veteran's arthritis even though the arthritis did not develop until years after service. At this juncture, the Board again notes that service connection may 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). The record also includes three opinions that state the Veteran's left knee disability is not the result of active service. The March 2005 fee basis examination did not include any reasons and bases for this opinion. The January 2006 VA examiner described the opinion of Dr. J.T.M. that the repeated left knee arthritis was due to repetitive trauma, but based his disagreement on the fact that there was no indication of any significant problems related to any in-service injury for any of his joints. Finally, the November 2011 opinion and January2012 addendum also noted lack of any specific complaints regarding the left knee and found that the opinions relating the Veteran's disability to a twisting injury were speculative, as there was no record of such an injury. However, these negative opinions are also flawed. As noted, the March 2005 opinion contains no explanation. The January 2006 examiner finds there was no evidence of any significant injury to the left knee, but fails to mention the Veteran's April 1973 report that specifically referred to left knee pain, as opposed to just left leg pain. Furthermore, it appears this examiner is basically just disagreeing with the concept that repetitive trauma in service could result in arthritis. Finally, the November 2011 examiner also fails to note the April 1973 report of left knee pain. And while this examiner dismisses the opinions that relate the Veteran's current left knee disability to a twisting injury in service as speculative, he does not address whether or not the current disability could have initially developed due to repetitive trauma, as both Dr. J.T.M and Dr. C.N.B. believe. (CONTINUED ON NEXT PAGE) In view of these varied opinions, the Board finds that the evidence that the Veteran developed his arthritis of the left knee as a result of trauma during service is in equipoise, which means that service connection is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left knee disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs