Citation Nr: 1306293 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 05-28 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a left knee condition. 3. Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1985 to May 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. These matters were before the Board in February 2011 when they were remanded for additional development. The February 2011 remand included the matters of service connection for tinnitus and for an acquired psychiatric disorder. A September 2011 rating decision granted service connection for tinnitus and for generalized anxiety and major depressive disorder. The Veteran has not expressed disagreement with the rating decision, and those matters are no longer before the Board. The issue of service connection for a back condition 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. FINDINGS OF FACT 1. The Veteran's right knee patellar chondromalacia had its onset in service. 2. The Veteran's left knee patellar chondromalacia had its onset in service. CONCLUSIONS OF LAW 1. Right knee patellar chondromalacia was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Left knee patellar chondromalacia was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a right and left knee disabilities, which constitutes a complete grant of the benefits sought on appeal as to those claims. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claims. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may be established upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if (1) the 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 professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Caluza, 7 Vet. App. at 511; Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007). The veteran's service treatment records reflect that the Veteran was seen on numerous occasions for complaint and treatment of right knee and left knee problems. Indeed, an April 1987 entry shows that the Veteran complained of bilateral knee pain for 10 months; the assessment was patellofemoral antalgia. The Veteran filed his initial claim seeking service connection for a bilateral knee condition in January 2004. He reported he began feeling the pain in 1986 while aboard ships due to a lot of bending and crawling along with heavy lifting. He related he was told he had water on the knees, and that the pain lasted throughout his enlistment, and that his knees were still painful. Private treatment records from 1994 to 2004 are negative for any complaints regarding the Veteran's knees. On June 2005 VA joint examination, the Veteran reported knee pain (left greater than the right) ongoing since service. On physical examination, there was no evidence of crepitus and x-rays were normal. The diagnoses included a normal right and left knee without residual of trauma. At a September 2006 hearing before a Decision Review Officer, the Veteran related his knee problems to being on the deck of ships all the time and crawling because of his duties. He further testified that he currently has occasional bilateral knee pain. VA treatment records from April 2006 to February 2010 include a May 2006 report in which the Veteran denied having any muscle or joint pain or swelling. A May 2007 report found on physical examination the Veteran's gait and station were without abnormality and that his joints, bones and muscles were normal. A July 2007 report found no disturbances of gait or station. In a January 2008 report, the Veteran denied having any bone or joint problems. A February 2008 report found no disturbance of gait or station. November 2009 records noted his complaint of bilateral knee pain since service, right knee pain greater than left knee pain. A January 2010 report noted his complaint of right knee pain. At the October 2010 Travel Board hearing, the Veteran testified that that his duties during service included a lot of crouching, ducking, bending and other activities. He credibly related that he had continuous problems with his knees throughout service, and that his knee problems have continued after service. He testified that he was told it was water on the knees during service. He also testified that during service he had clicking, grinding, and instability in his knees during service and the symptoms have continued since service. On June 2011 VA joint examination, the Veteran stated his bilateral knee condition developed due to the physical activities related to his duties during service, including jumping from heights of five to ten feet, using stairs, and dragging equipment. He reported he was told during service that he had water on the knees and that his condition was due to stepping over knee knockers. Since service, the bilateral knee pain has continued. He related that a 2010 VA MRI revealed arthritis and that he was told it may be from previous injuries. He complained of bilateral knee instability, giving way, stiffness, and locking. Physical examination revealed both knees clicked/snapped and left knee grinding, along with decreased range of motion with pain; the knees were negative for any other abnormality, including crepitation, instability, patellar abnormality, meniscus abnormality, or ankylosis. After a review of the claims file, include VA radiology studies in 2010 and 2011, including the referenced 2010 MRI, the examiner diagnosed the Veteran with bilateral moderate to severe patellar chondromalacia, right knee worse than the left knee per MRI. The examiner opined that the Veteran's bilateral knee disability was not due to or a result of his active duty service, noting x-rays during service were normal and his separation examination was negative for any knee abnormalities. In addition, the Veteran's first complaint regarding his knees was 2009. The diagnosis provided and substantiated by MRI in 2010 occurred 20 years after his separation from service. In view of the credible lay evidence from the Veteran that he injured both knees in service and was treated for such in service, the lay statements supporting his bilateral knee pain and symptoms since service, service treatment records reflecting significant treatment for bilateral knee pain, and the post-service treatment records of ongoing complaints with a current diagnosis of bilateral knee patellar chondromalacia, the Board finds that, resolving reasonable doubt in the Veteran's favor, service connection is warranted for right and left knee patellar chondromalacia. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). ORDER Service connection for right knee patellar chondromalacia is granted. Service connection for left knee patellar chondromalacia is granted. REMAND The Veteran also seeks entitlement to service connection for a back condition. After a review of the claims file, the Board finds that further development is necessary for proper adjudication of the claim. In February 2011, the Board remanded this matter for additional development. Specifically, the Board requested that the Veteran be afforded another VA examination to determine the nature, extent, onset and etiology of any back condition found to be present. In June 2011, the Veteran was afforded a VA joint examination to include the matter of service connection for a back condition. The examiner diagnosed the Veteran as having degenerative disc disease with mild limited motion and pain. The examiner noted that the Veteran's service treatment records are silent for a lumbar spine disability and his spine was normal on separation examination. In addition, it was noted that there was no evidence of ongoing medical care until October 2002. The examiner opined that degenerative disc disease are age-related changes of the discs due to a loss of fluid within the disc. People in the general population develop this condition, and those who smoke, are obese, and perform heavy physical work are at a higher risk for this condition. In the Veteran's case, he is obese and has been in occupations that have been physically demanding since service. Based on the service treatment records, medical history, private treatment records and diagnostic testing, the examiner opined that the Veteran's lumbar condition is not related to the military. In January 2013 correspondence, the Veteran's representative questioned the adequacy of the June 2011 VA joint examination. Specifically, the Veteran's representative contends that the examiner's opinion regarding the etiology of the claimed back condition is based on an inaccurate factual premise as the examiner erroneously referenced the Veteran's enlistment examination report as his separation examination report. The June 2011 VA joint examination report reveals that the June 2011 examiner erroneously noted that the Veteran's treatment for his back did not begin until October 2002, when in fact the evidence shows that it began earlier. Significantly, although no evidence of treatment was noted since separation until May 2002, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)). The examiner failed to adequately address the Veteran's competent statements of a continuity of symptoms. In addition, the examiner did in fact reference the June 1984 enlistment examination instead of the April 1989 separation examination in the formulation of her opinion. Notably, the April 1989 separation examination reflects that the examiner noted that the Veteran had lumbar symptoms consistent with mechanical pain. As such, the Board finds that an addendum opinion to the June 2011 VA examination should be provided to determine the nature, onset and etiology of the Veteran's back condition. Finally, the most recent VA treatment records in the claims file are dated February 2010. The Veteran has received additional treatment in the intervening time (as reflected by radiology reports identified on June 2011 VA joint examination). Therefore, on remand, any VA treatment records relevant to the back condition dated from February 2010 to the present from the Saginaw VA Medical Center (VAMC) should be obtained for consideration in this appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain, physically or electronically, any VA treatment records from the Saginaw VAMC dated from February 2010 to the present that are relevant to the Veteran's back condition. 2. After associating any outstanding medical records with the claims folder, send the Veteran's claims folder to the examiner who conducted the June 2011 VA examination of the Veteran's spine, or if that examiner is no longer available, a suitable replacement to request that she prepare an addendum to her report. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The claims file should be made available to and reviewed by the examiner. The examiner is requested to clarify whether it is at least as likely as not that the Veteran's back disability: a) is related to, or had its onset, during service, or b) was caused, at least in part, by the Veteran's service-connected right or left knee disability, or c) was aggravated, at least in part, by the Veteran's service-connected right or left knee disability. In offering the opinion, the examiner must acknowledge and discuss the lay evidence regarding a continuity of symptoms since service. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. 3. Then readjudicate the appeal. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and afford the Veteran a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs