Citation Nr: 1237270 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-36 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include right knee arthritis, status post total knee replacement and multiple surgical revisions. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). [The claim for entitlement to service connection for degenerative disc disease of the lumbar spine is addressed in a separate Board decision.] REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the above claims. In November 2009, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In March 2012, the Board sent a letter to the Veteran advising him that he could testify at another Board hearing, and the Veteran responded that he wanted to appear at a hearing before a VLJ of the Board at his local regional office. Therefore, in July 2012, a hearing was held before the undersigned VLJ. In March 2010, the Board remanded the matter to the RO for the purpose of providing the Veteran with additional notice, obtaining additional evidence, and providing the Veteran with a VA examination. In September 2012, the Board remanded the matter to the RO for the purpose of scheduling the Veteran's July 2012 hearing, as discussed above. The issues of entitlement to service connection for a left knee disorder, to include as secondary to his service-connected right knee disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's right knee disorder, to include right knee arthritis, status post total knee replacement and multiple surgical revisions, was incurred in, or caused by, his military service. 2. The Veteran's PTSD was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder, to include right knee arthritis, status post total knee replacement and multiple surgical revisions, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2011). 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by 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. 2011); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2010). In this decision, the Board grants service connection for a right knee disorder, to include right knee arthritis, status post total knee replacement and multiple surgical revisions, and PTSD. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance with the duty to notify and assist or the Board's March 2010 or September 2012 Remand orders is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he has suffered from right knee problems requiring a total right knee replacement and two subsequent surgical revisions due to the nature of his regular duties as a lineman during military service. He also asserts entitlement to service connection for PTSD as a result of spending several days and nights laying wire in a cow pasture infested with snakes. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after service may be service connected when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to establish service connection, 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, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). Alternatively, under 38 C.F.R. § 3.303(b), the second and third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The claimant must show (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. Id. at 307. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). While the nexus requirement for continuity of symptomatology is not equivalent to the nexus requirement for service connection, competent lay or medical evidence still must show a relationship between the continuous symptoms and the presently diagnosed disability; any present disability is necessarily related to any demonstrated continuous symptomatology. Id. at 497. When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). A lay witness is competent to testify to the occurrence of an in-service injury or incident where the issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (1999). Specifically, the Veteran is competent to report symptoms of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider facial plausibility, internal consistency, consistency with the other evidence of record, the demeanor of the witness if oral testimony is given, self-interest, and possible bias. Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006))); Pond v. West, 12 Vet. App. 341, 345-47 (1999); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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 Veteran. Washington, 19 Vet. App. at 366-67; Owens v. Brown, 7 Vet. App. 429, 433 (1995). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran's service records were not available for review as they were destroyed in the fire at the National Personnel Records Center in St. Louis, Missouri, in July 1973. Under such circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's treatment records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). No presumption, either in favor of the claimant or against VA, arises where there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). I. Service Connection for a Right Knee Disorder In July 2005, the Veteran was referred to an orthopedic surgeon for evaluation of significant bilateral knee pain, described as aching, activity-related, and worse on the right than the left. On examination, he had obvious effusion, significant crepitus, limitation of motion, and tenderness, and x-ray showed severe tricompartmental degenerative joint knees of both knees. He ultimately underwent a right total knee replacement in October 2005 and right total knee revisions in October 2006 and January 2010. Accordingly, upon VA examination in December 2010, the Veteran was diagnosed with right knee arthritis, status post total knee replacement in 2005 and two revisions in 2006 and 2010. X-ray findings were highly suspicious for femoral component loosening with cortical reaction suspected; a follow-up bone scan was recommended. The Veteran has submitted several statements and has provided hearing testimony regarding his duties as a lineman. He testified that his duties consisted of climbing poles with spiked shoes, laying wire, pulling wire, and anchoring wire. He had to carry heavy equipment to accomplish these tasks. He asserts that he climbed poles daily and would often lose feeling in his knees, legs, and feet from the weight of the equipment he was carrying and the length of time spent standing on iron stakes driven into the poles. He also asserts that he frequently fell from the poles when his spikes dislodged from the poles due to the weight. The Veteran is competent to testify to the duties he regularly performed in service and instances of falling from poles as this information is factual in nature and capable of lay observation. See Grottveit, 5 Vet. App. at 93. Furthermore, the Board finds that his testimony is credible as it is internally consistent and corroborated by his DD-214, which shows that he served as a construction lineman. See Pond, 12 Vet. App. at 345-47. In statements dated October 2008, a neighbor asserted that the Veteran had problems with his legs since he returned from service, could not walk or stand for long periods of time, and experienced worsening symptoms as he has aged, and a friend stated that the Veteran's leg problems prevented him from participating in activities like hunting, baseball, and bowling over the 45 years of their friendship. The Veteran's neighbor and friend are competent to testify to the functional limitations and limitations on activities that they witnessed and to the Veteran's attribution of these limitations to the pain in his legs. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a layperson is competent to report on that of which he or she has personal knowledge). These lay statements constitute credible evidence as the assertion that the Veteran would limit certain activities due to knee pain is facially plausible and the statements provided relate consistent information. See Pond, 12 Vet. App. at 345-47. At the December 2010 VA examination, the Veteran reported an onset of knee pain in service and continuous symptoms of knee pain since service. He reported first seeking treatment immediately after service in 1956 or 1957, but no disorder was diagnosed at that time. Subsequently, his symptoms continued to worsen until a disorder was confirmed in 2004 and he underwent surgery in 2005. The Veteran is competent to testify to continuous symptoms of knee pain. See Hickson, 12 Vet. App. at 253 (1999); Washington, 19 Vet. App. at 368. His account of continuously worsening knee pain since service is credible it is corroborated by the competent and credible lay accounts of the limitations placed on his activities over the years that were submitted in October 2008 and the severity of the arthritis documented in his medical records once he finally sought formal orthopedic treatment in July 2005. See Gardin, 613 F.3d at 1379-1380; Pond, 12 Vet. App. at 345-47. The record contains conflicting medical opinions on the etiology of the Veteran's right knee disorder. As with all evidence, it is the responsibility of the Board to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board may favor the opinion of one competent medical expert over another as long as it articulates understandable and valid reasons for doing so. Parrish v. Shinseki, 24 Vet. App. 391 (2011). In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. Nieves-Rodriguez, 22 Vet. App. at 302, citing FED. R. EVID. 702. Therefore, the examiner must provide the sort of factually accurate, fully articulated, and sound reasoning that allows the Board to assess whether the conclusion provided is the product of valid medical analysis applied to the significant facts of the particular case. Id. at 304. Absence of review of the claims folder does not categorically exclude the possibility that the medical expert may be otherwise informed of the relevant facts; for example, a private physician may have detailed knowledge of a Veteran's medical history as a result of treating the Veteran for an extended period of time. Id. at 302-04; see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2008). In a November 2009 statement, the Veteran's private physician provided the opinion that the Veteran's work as a lineman during his active military service directly contributed to the arthritic condition in his knees. This opinion was premised on the nature of the Veteran's work as a lineman, which involved climbing up and down poles while carrying weights of up to 20 to 30 pounds on his tool belt, as well as the Veteran's accounts of episodes of falling off the poles onto his knees causing knee injuries. As the Veteran's accounts of his work as a lineman and in-service knee injuries have been determined to be credible, this opinion is the product of medical analysis applied to a history found to be factually accurate. Furthermore, the Veteran's private physician has treated the Veteran's knee disorder for a number of years and performed his right knee surgeries. The physician thereby has relevant detailed knowledge of Veteran's medical history and the nature of his knee disorder. Conversely, the VA examiner determined that the Veteran's right knee disorder is less likely than not caused by military service where the Veteran was able to participate in gainful employment for over 40 years after service and medical care for the right knee is not documented until more than 40 years after discharge. First, this opinion lacks sufficient reasoning, as it does not explain why these facts would necessarily lead to the conclusion reached. The rationale provided implies, however, that the negative opinion is due to the lack of objective evidence of post-service symptoms, possibly indicating that the onset of the Veteran's right knee disorder was many years after discharge from service. But, in reaching this opinion, the VA examiner did not account for Veteran's post-service report of continuous symptoms, which the Board has found to be credible. As such, the VA examiner did not consider the existing evidence of knee symptoms since service in reaching the determination that the Veteran's knee condition had its onset many years later, such that relevant facts were omitted from the examiner's analysis. Nieves-Rodriguez, 22 Vet. App. at 302, citing Fed. R. Evid. 702; Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a medical opinion was inadequate where medical examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service). Therefore, as the opinion of the VA examiner lacks sufficient reasoning and appears to be inaccurately premised on the delayed onset of the Veteran's right knee symptoms, this opinion is of diminished probative value and is outweighed by the medical opinion submitted by the Veteran's private physician. This opinion is accurately reasoned from facts provided by the Veteran, and was also provided with the benefit of having treated the Veteran's knee disorder for an extended period of time. Therefore, in weighing the probative value of the evidence of record showing a current diagnosis of right knee arthritis, status post total knee replacement in 2005 and revisions in 2006 and 2010; onset of those symptoms in service; continuous worsening symptoms since service; and medical evidence linking the current diagnosis to the Veteran's in-service duties and subsequent symptoms, the Board finds that service connection for a right disorder, to include right knee arthritis, status post total knee replacement in 2005 and revisions in 2006 and 2010, is warranted. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167; see also Barr, 21 Vet. App. at 307; Savage, 10 Vet. App. at 496-497. All doubt has been resolved in favor of the Veteran. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. II. Service Connection for PTSD Generally, absent an applicable exception, the record must include the following to establish service connection for PTSD: (1) medical evidence establishing a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 38 C.F.R. § 3.304(f). Effective July 13, 2010, the regulations concerning the criteria for service connection for PTSD were amended, primarily in order to reduce the evidentiary burden of establishing a stressor when a VA psychologist or psychiatrist has confirmed that the stressor is adequate to support a diagnosis of PTSD and the claimed stressor is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 through 39852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). However, as the general elements for service connection for PTSD are met in this case, no further discussion of this new provision is necessary. Where the new liberalizing provision or another exception does not apply, as is the case here, the Veteran's claimed in-service stressor must be corroborated by independent evidence. Doran v. Brown, 6 Vet. App. 283, 288-289 (1994). The Board is not required to accept an appellant's uncorroborated account of his or her active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). In other words, the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, the record must contain service records or other credible corroborative evidence substantiating or verifying the Veteran's testimony or statements on the occurrence of the claimed stressor(s). See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, a stressor need not have been corroborated in every detail. See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997); see also Pentecost v. Principi, 16 Vet. App. 124 (2002). Here, the Veteran claims that he suffered from nightmares after spending several days and nights laying wire in a cow pasture infested with snakes during service at Fort Pope, Alabama, in the Spring of 1955. He asserts that the infestation was so bad that a dozen snakes were killed over a period of three hours, they had to shake out their sleeping bags to rid them of snakes every night, there were more snakes in the tents every morning, and five or six people were bitten by snakes during the exercise. The Veteran's account is corroborated by his DD-214, which shows duty as a lineman, and thereby verifies that the activities that he describes are consistent with those performed by servicemembers with that occupational specialty. As noted above, a stressor need not be corroborated in every detail. That a lineman would be exposed to snakes during a spring exercise in Alabama is a valid inference to be drawn from the nature of his occupational specialty and character or service. See, e.g., Suozzi, 10 Vet. App. at 310. In January 2011, the Veteran was provided with a VA examination. At the examination, the Veteran related the increasing anxiety he began to feel while climbing poles in service in addition to an account of the previously described stressor. As noted above, climbing poles is clearly corroborated by the occupational specialty listed on the Veteran's DD-214. The examiner diagnosed the Veteran with PTSD in accordance with the DSM-IV criteria and determined that PTSD was due to trauma pertaining to consistent exposure to poisonous snakes and trauma caused by regularly climbing poles in service. Therefore, as the evidence of record shows a diagnosis of PTSD in accordance with the DSM-IV criteria; the occurrence of in-service stressors, corroborated by independent evidence; and medical evidence showing an etiological relationship between the Veteran's current PTSD symptomatology and the stressors in service, service connection for PTSD is warranted. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 138. ORDER Service connection for a right knee disorder, to include right knee arthritis, status post total knee replacement and multiple surgical revisions, is granted. Service connection for PTSD is granted. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs