Citation Nr: 1306943 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-31 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a right knee disorder, status post total right knee arthroscopy, to include synovitis in the knee joint as a residual of surgery. 2. Entitlement to service connection for a left knee disorder, to include osteoarthritis of the left knee. REPRESENTATION Appellant represented by: Penelope Gronbeck, Esquire WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served with the U.S. Army National Guard from November 1960 to November 1967 and from February 1968 to April 2002, including multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the above claims. The Veteran testified at a hearing before a Decision Review Officer (DRO) in April 2009 and at a hearing before a Veterans Law Judge (VLJ) in November 2009. These transcripts have been associated with the claims folder. In January 2010, the Board denied the Veteran's claims. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), which, in a December 2011 memorandum decision, vacated the Board's January 2010 decision and remanded the Veteran's claim to the Board for further development in accordance with VA's duty to provide the Veteran with an adequate VA examination. In September 2012, the Veteran testified at an additional video-conference hearing before a second VLJ, and a transcript of this hearing was associated with the claims folder. Thus, the Veteran had two Board hearings before two different VLJs, in November 2009 and September 2012. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and, further, that all Board decisions will be issued by either a single member or a panel consisting of no less than three VLJs. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Consequently, a Veteran is entitled to have an opportunity for a hearing before all three Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, as the Board has determined that service connection is warranted for the claimed bilateral knee disabilities and the full benefit sought on appeal is being granted, there is no prejudice to the Veteran in proceeding without affording the Veteran a third hearing. See Arneson, 24 Vet. App. at 387-88 (explaining that the Court's holding reflects concern with the Veteran's ability to present credibility evidence to all decision makers and the appearance of fairness in the adjudicatory process where an opportunity is not provided for a hearing before all three members who will decide the appeal). In January 2013, the Veteran submitted additional evidence in support of his claim, along with a waiver of RO consideration. Accordingly, the newly submitted evidence will be considered in this decision. 38 C.F.R. § 20.1304. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus, type II, was raised at the November 2012 hearing. Additionally, correspondence received in February 2007 raised the downstream issue of entitlement to a temporary total rating due to surgical convalescence. These issues 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. FINDINGS OF FACT 1. The Veteran's total right knee arthroscopy, to include synovitis in the knee joint as a residual of surgery, is causally related to his military service. 2. The Veteran's osteoarthritis of the left knee is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for status post total right knee arthroscopy, to include synovitis in the knee joint as a residual of surgery, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for entitlement to service connection for osteoarthritis of the left knee 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 FINDINGS AND CONCLUSIONS As provided by the Veterans Claims Assistance Act (VCAA), the 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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). In this decision, the Board grants all benefits sought by the Veteran for his bilateral knee disorders. As this award constitutes a complete grant of the benefits sought on appeal, any deficiency in VA's compliance with the duty to notify and assist, the duty to ensure compliance with the Board and the Court's remand orders, and the duties of a hearing officer would constitute harmless error, and no further discussion of these duties are necessary. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that harmless error is a case-specific determination and the Veteran carries the burden of showing prejudice); 38 C.F.R. § 20.1102. The Veteran contends that he progressively developed arthritis of the knees, bilaterally, worse on the right than the left, as a result of an injury in service incurred during a fall down two flights of concrete stairs while carrying ammunition on December 1976 after an Army National Guard Pistol Match. 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; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes (1) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty and (2) any period of inactive duty training (INACDUTRA) during which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a)(d). The term "inactive duty training" includes other-than-full-time duty under 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Specifically, 32 U.S.C.A. § 504 pertains to National Guard participation in small arms competitions. Service connection will be granted where the disorder claimed was not diagnosed until after the relevant period of service where the evidence establishes that it was incurred in service. Summers v. Gober, 225 F.3d 1293, 1296-97 (Fed. Cir. 2000); Velez v. West, 11 Vet. App. 148, 152 (1998); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); 38 C.F.R. § 3.303(d). Generally, 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); 38 C.F.R. § 3.303(a). 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. See id.; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). 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 v. Nicholson, 19 Vet. App. 362, 366-67 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In doing so, 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 weighing the medical evidence, 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); see generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient and accurate facts and data and 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. See Nieves-Rodriguez, 22 Vet. App. at 302, citing FED. R. EVID. 702. Therefore, the medical expert 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. In other words, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Id. at 301; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 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. Here, the Veteran has current diagnoses of status post total right knee arthroscopy and osteoarthritis of the left knee. An opinion submitted by an orthopedic surgeon in November 2012 notes that the presence of warmth and effusion ten years after a total knee arthroplasty is a substantial and serious condition requiring close monitoring and evaluation to rule out bone absorption, subsidence, and inflammation related to wear of the components of the total arthroplasty, and finds that there are residuals of synovitis in the right knee joint. Therefore, the evidence clearly establishes the existence of a current right knee disability that is a residual of the total right knee arthroscopy as well as osteoarthritis of the left knee. Furthermore, his service records clearly establish the occurrence of the in-service injury claimed, as well as his duty status at that time of that injury. A December 1976 report found that the injury was incurred in the line of duty and that the Veteran was on inactive duty training at the time of the injury. Other service records show that the Veteran was in drill status during this period. Further, under the applicable law and regulations, National Guard participation in small arms competitions constitutes INACDUTRA. 32 U.S.C.A. § 504; 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). The record is in equipoise on the issue of medical nexus. As noted above, the Court found that the opinion provided by the VA examiner in August 2009 was inadequate for rating purposes due to the lack of sufficient rationale provided for the opinions offered. See Nieves-Rodriguez, 22 Vet. App. at 301-04; Stefl, 21 Vet. App. at 124. Significantly, the Veteran also submitted an additional medical opinion from an orthopedic surgeon in November 2012 that was not of record at the time of the Board's previous decision. While VA has a duty to ensure that any VA medical opinion obtained is adequate, the duty to assist only includes obtaining a medical opinion when it is necessary to make a decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, as the Veteran's claims can now be decided on the basis of the evidence currently of record, there is no need to obtain additional clarification or rationale from the August 2009 VA examiner. Here, in November 2012, the orthopedic surgeon found that the Veteran has experienced progressive degenerative osteoarthritis of both knees that is causally related to his fall in service in 1975. This medical opinion was submitted by a physician with the appropriate expertise; the opinion contains a complete review of the Veteran's relevant medical history, including a review of his medical records; and the orthopedic surgeon provided a rationale behind the opinion provided based on the review of the Veteran's examination data and relevant medical history. This review of the relevant medical history included a history of medical treatment for the knee dating back to 1975 and 1980, specifically concerning evidence of gait changes and aspiration of fluid from the knee joint. See Stefl, 21 Vet. App. at 123; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As this opinion contains clear opinions supported by a medical explanation of the supporting data, the Board finds this opinion to be highly probative. See Nieves-Rodriguez, 22 Vet. App. at 301. The Veteran's primary physician also submitted several statements in which he asserts that the Veteran's current condition is the result of posttraumatic end stage osteoarthritis, developed over several decades. In these statements, the physician attested to the Veteran's consistently reported history of chronic right knee pain dating back to 1976. The physician also explained that the Veteran was not given a full orthopedic evaluation until the orthopedic evaluation of his back one month after the time of the injury, which presents problems with any determination against the existence or extent of any bilateral knee injuries at that time. The opinions were submitted by a medical practitioner having over 10 years of experience treating the Veteran who reviewed all relevant aspects of the Veteran's medical history and presented full rationales for the opinions offered based on the medical evidence reviewed. See Stefl, 21 Vet. App. at 123; Green, 1 Vet. App. at 124. When considered in combination with the more detailed expert medical opinion submitted by the orthopedic surgeon, the opinions submitted by the Veteran's primary treating physician also carry significant probative weight. Conversely, although examination records in service show normal knees and no complaints of knee symptoms through March 1995 and, in August 2009, a VA examiner determined that the Veteran's bilateral knee disabilities were less likely than not related to the in-service fall, this evidence is outweighed by the positive medical opinions in favor of the Veteran's claims. The August 2009 VA examiner explained that the evidence did not justify finding a link between the current knee disorders and service where there was no medical evidence showing post-service knee symptoms until 1993 or other evidence correlating any later knee problems to the initial fall in service. The examiner determined that the Veteran's knee problems were more likely related to age, weight, and deconditioning over the years. The Court has determined that the August 2009 opinion provided by the VA examiner is not adequate for rating purposes, as it does not provide an explanation as to whether the 1993 injury is in any way related to the initial in-service injury or the reasons for the determination that the Veteran's knee problems are due to age, weight, and deconditioning. Consequently, it cannot constitute medical evidence against the Veteran's claim. Furthermore, the records from the Veteran's primary physician note a reported history of knee pain dating back to 1976, and describe the Veteran's weight issues as a compounding factor, not the primary causal factor. Additionally, the opinions provided by the orthopedic surgeon and the Veteran's treating physician account for and explain any lack of treatment for knee problems prior to 1993 by characterizing the nature of the Veteran's knee disorders as progressive. The orthopedic surgeon specifically found that the Veteran sustained injuries to the cartilage surfaces of the knee joints in December 1976 that led to progressive degenerative osteoarthritic changes and his primary physician explained that this degeneration progressed over a matter of decades. Consequently, any objection raised by the VA examiner has been reconciled by the other medical evidence of record. As the record is at least in equipoise, the Board will resolve all doubt in favor of the Veteran and find that a medical nexus between the currently diagnosed bilateral knee disorders and the fall in service in December 1976 is established. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. Therefore, as the evidence of record shows diagnoses of status post total right knee arthroplasty, with a surgical residual of synovitis, and osteoarthritis of the left knee; service records establish the fall in service described by the Veteran; and the medical evidence establishes an etiological relationship between the Veteran's current bilateral knee disorders and the injury during a period of INACDUTRA, service connection is warranted. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303; see also 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a)(d). ORDER Service connection for a right knee disorder, status post total right knee arthroscopy, to include synovitis in the knee joint as a residual of surgery, is granted. Service connection for osteoarthritis of the left knee is granted. K. PARAKKAL MICHAEL D. LYON Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs