Citation Nr: 1304722 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 07-00 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right knee orthopedic disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and F.D. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to September 1988 and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) as a member of the Army Reserves after September 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran and F.D. testified at a personal hearing before the undersigned. A transcript of that hearing is associated with the claims file. At the April 2011 hearing, the Veteran raised the issue of an increased disability rating for his service-connected right knee scar. This matter was referred to the Agency of Original Jurisdiction (AOJ) in August 2011, but has yet to be adjudicated; therefore the Board does not have jurisdiction over that issue and it is referred again to the AOJ for appropriate action. In August 2011, the Board issued a decision granting service connection for a left ankle disability, dismissing claims for service connection for a right wrist disability and a right forearm disability based on the Veteran's withdrawal of the claims, and remanding the claims considered in this decision. The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's right knee orthopedic disability had its onset during ACDUTRA or INACDUTRA. CONCLUSION OF LAW The criteria for service connection for a right knee orthopedic disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As to the only issue decided in this decision, entitlement to service connection for a right knee orthopedic disability, 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 disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The second and third requirements may be satisfied with evidence of a chronic disease shown during service or a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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 professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Initially, concerning the right knee, the first and third elements of service connection are satisfied. The medical records associated with the claims file indicate that the Veteran has a current disability of degenerative joint disease of the right knee. There is also a sufficient nexus between the current disability and an apparent in-service injury. An October 2011 VA examiner opined that the Veteran's right knee degenerative joint disease began following a fall that occurred in 1997 or 1998 during an ACDUTRA or INACDUTRA ruck march. Similar opinions were provided by non-VA medical providers. Dr. R.B., in statements provided in August 2010 and April 2011, opined that the Veteran had developed a right knee disability over the course of his active duty military service, which included parachute jumps and extensive training, and that his right knee disability was aggravated by the fall that occurred in either 1997 or 1998. Dr. B.K. opined in April 2011 that the Veteran's right knee disability was related to a "serious fall while on duty." The remaining question, therefore, is whether the evidence indicates that a right knee injury occurred in either 1997 or 1998 while the Veteran was completing a ruck march for ACDUTRA or INACDUTRA. The Board notes that service connection may be warranted for any injury occurring during either type of military service. See 38 C.F.R. § 3.6(a) (2012). The Board finds that there was a right knee injury during ACDUTRA or INACDUTRA, despite the fact that the particular circumstances of the right knee injury are unclear. Initially, the Veteran is competent to identify an injury that he has suffered. He is also competent to report that it was during a march while on ACDUTRA or INACDUTRA. See Layno, 6 Vet. App. at 470. The Board must therefore determine whether the Veteran's testimony is credible. See Barr, 21 Vet. App. at 308. The various statements discussed below somewhat contradict each other with regard to particular details of the injury, but on the whole are credible, and demonstrate clearly that such an injury occurred. As discussed below, the Veteran has identified a May 1997 fall in which he injured his right and left knees. The Veteran testified at his April 2011 hearing that he fell during a ruck march in training when he landed awkwardly while stepping off of a curb, and injured his right knee. He did not specify a date of the injury at that time, but indicated that he had submitted a payroll leave and earnings statement for his training to demonstrate that the injury occurred during training; that leave and earnings statement is in the record, and is dated in May 1997. At his October 2011 examination, the Veteran indicated that he fell during training in 1997 and injured his right and left knees. Dr. RB, a colonel in the United States Army Reserves and a chiropractor, served with the Veteran at the time of his right knee injury, according to the Veteran's April 2011 hearing testimony. Dr. RB submitted two statements concerning the Veteran's injury. In an August 2010 statement, Dr. RB stated that the Veteran was injured when he stepped off a curb during a ruck march in September 1998. Dr. RB submitted a second statement in April 2011, indicating that the Veteran's injury actually incurred in May 1997. In August 2010, retired Major JT submitted a statement in which he related that, on a 1998 ruck march in which Major JT participated, the Veteran injured both of his knees. Taking these statements together with the Veteran's statements, the Board finds that the Veteran's history of an injury to his knees during training is credible. The Veteran has consistently indicated that he injured his knees in a fall, and that fact is supported by Dr. RB and Major JT. The discrepancy concerning the date of the injury more than a decade after it occurred is understandable, and undermines neither the Veteran's credibility, nor that of the individuals who submitted statements on his behalf. Based on the foregoing analysis, the Board finds that the Veteran injured both of his knees during the fall, and that the fall occurred in or around May 1997. Therefore, he meets the second prong of service connection, an in-service injury. See Davidson, 581 F.3d at 1316. Having met the criteria for service connection, and resolving all reasonable doubt in favor of the Veteran, the preponderance of the evidence supports service connection for a right knee orthopedic disability. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a right knee orthopedic disability is granted. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. Remand is required to obtain service personnel records and VA medical opinions. Regarding both claims on appeal, remand is required to obtain service personnel records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). August 2009 email correspondence indicates a difficulty in obtaining the Veteran's personnel file. Thereafter, numerous documents from the Veteran's personnel file are included in the claims file, although it is unclear if those documents were provided by the Veteran or obtained by VA. The AMC should ensure that the entirety of the Veteran's personnel file has been associated with the claims file. Regarding the claim for entitlement to service connection for a left knee disability, remand is required for an addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must be factually accurate, fully articulated, and based on sound reasoning in order to be probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The evidence of record shows a current left knee disability of degenerative joint disease and that he had an in-service knee injury in May 1997. An opinion obtained in 2011 provides contradictory statements; it is insufficient upon which to grant or deny the claim. The VA examiner stated that it was less likely than not that the effects of the Veteran's pre-service left meniscectomy was permanently worsened by any injury during ACUDTRA or INACDUTRA after 1988, but then stated that the knee problems appear to have started after the acute fall in the 1997-1998 periods. Accordingly, the Board must remand for clarification. Here, however, the claims file does not currently contain an entrance examination for the relevant period of ACDUTRA or INACDUTRA (May 1997). On remand, such a record may be obtained, although entrance examinations are not always conducted prior to periods of training. Hence, the examiner must precisely answer the questions as posed in the request below. Regarding the issue of entitlement to service connection for a right ankle disability, remand is required to obtain an opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. A medical opinion must be factually accurate, fully articulated, and based on sound reasoning in order to be probative. Nieves-Rodriguez, 22 Vet. App. at 302. This case was remanded in August 2011 to obtain an examination and opinion concerning the etiology of the disability. Specifically, the examiner was asked to address whether the Veteran's right ankle disability was (a) caused or had its onset during active duty or was caused by an injury during training after 1988; (b) aggravated by the Veteran's service-connected left ankle disability or his service-connected residuals of a left third metatarsal fracture; or (c) aggravated by his service-connected left ankle disability or his service-connected residuals of a left third metatarsal fracture. Following an October 2011 examination, the examiner provided opinions addressing those three issues, but unfortunately worded the opinions in such a way that the Board cannot rely on them. Each opinion began in a self-contradictory nature: "[i]t is less likely as not (a 50 percent or greater probability) . . . ." (emphasis added). If a causal relationship (or one based in aggravation) was found to "less likely as not" exist, then it could not at the same time be "a 50 percent or greater probability" that such a relationship exists. A clarification of the opinions provided is necessary. Accordingly, the case is REMANDED for the following action: 1. Use all reasonable means to obtain and associate with the claims file all outstanding records from the Veteran's service personnel file. All efforts to obtain such records should be documented in the file. If any records cannot be obtained, a formal finding to that extent should be made and associated with the file. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran's left knee disability from a VA examiner. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. First, if there is no entrance examination regarding the relevant period of service (May 1997), or an entrance examination that notes the presence of a pre-existing left knee disability, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pre-existing left knee disorder increased in severity during service, and if so, whether such increase was due to the natural progress of the disease. Second, if there is an entrance examination regarding the relevant period of service (May 1997) that indicates there is no pre-existing left knee disability, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record, whether the left knee disorder was clearly and unmistakably not aggravated by that period of ACDUTRA or INACDUTRA. Third, and finally, in either case, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disorder was caused or aggravated by his service-connected left ankle disability, residuals of a left 3rd metatarsal fracture, or right knee orthopedic disability. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran's left knee disability from a VA examiner. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the each diagnosed right ankle disorder was caused by or had its onset in active duty from 1980 to 1988 or was caused by an injury during his ACDUTRA or INACDUTRA after 1988. The examiner must also provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that each diagnosed right ankle disorder was caused or aggravated by his service-connected left ankle disability, residuals of a left 3rd metatarsal fracture, or right knee orthopedic disability. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs