Citation Nr: 1309010 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 12-00 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for residuals of shell fragment wound (SFW), right knee, to include an anterior cruciate ligament (ACL) tear and arthritis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for residuals, right knee SFW, right knee, to include an ACL tear and arthritis. The Veteran and his son testified before the undersigned Acting Veterans Law Judge (VLJ) at a Videoconference Board hearing in March 2013. A transcript of that hearing is of record and associated with the claims folder. FINDING OF FACT The Veteran's residuals, SFW, right knee, to include an ACL tear and arthritis, are related to his active service during World War II. CONCLUSION OF LAW Residuals, SFW, right knee, to include an ACL tear and arthritis, were incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection The Veteran contends that service connection for residuals, SFW, right knee, to include an ACL tear and arthritis, is warranted based on service incurrence. He maintains that he sustained this right knee injury while serving at Clark Field in the Philippines, during World War II. He related that bombing occurred wherein he sustained shrapnel to his knee. He was treated by a doctor who removed the shrapnel from his knee and sutured it in the field. He thereafter treated himself as he was a Navy corpsman at that time. He states that this injury still affects him to this date. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, 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, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet.App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service treatment records are negative for findings, treatment, or diagnosis of a right knee injury during service. It is important to note that the Veteran was a Navy corpsman during his active service and that after service, he went to medical school and became a medical doctor (MD). In May 2009, a letter was submitted to VA on behalf of the Veteran's claim by R.L.S., MD. Dr. R.L.S. stated that the Veteran had a right knee arthroscopy 15 years earlier, but his records were destroyed by Hurricane Katrina. He related a history of the injury in service with the removal of shrapnel from his right knee. Dr. R.L.S. stated that the Veteran believed this injured his ACL. Findings of the arthroscopy included a torn ACL and a tear of the medial meniscus. He underwent resection of the stump of the ACL and a partial medial meniscectomy. He had osteoarthritic changes that Dr. R.L.S. indicated could also be consistent with the in-service shrapnel injury. In September 2009, a letter was submitted to VA on behalf of the Veteran's claim by T.P.F., MD. Dr. T.P.F. stated that the Veteran was a patient of his with end-stage right knee osteoarthritis. He stated that the Veteran injured his right knee in 1945 when an explosion caused shrapnel to enter his right knee, severing his ACL. He had an ACL deficient right knee all of these years and developed right knee osteoarthritis. At the time of the medical statement, he had end-stage osteoarthritis in the right knee with bone-on-bone in the medial compartment and tricompartmental changes. The physician stated that he believed that the Veteran was a candidate for future right total knee arthroplasty. He opined that the Veteran's current right knee condition was related to the injury that he sustained in 1945, and whenever there is an ACL tear and deficiency, the knee osteoarthritis is accelerated. In support of his claim, the Veteran submitted pictures from his service during World War II, his curriculum vitae indicating his career as a medical doctor, and his statement describing the injury he sustained to his right knee in combat during World War II. The Veteran underwent a VA examination in October 2009. The examiner indicated that there was no evidence of a knee injury in the Veteran's medical records. He did note that the Veteran provided a history of a 1945 shrapnel injury to the right knee which was debrided in the field and resulted in "a possible ACL tear." The Veteran's joint symptoms were described as no deformity of the right knee, positive for giving way, instability, pain, weakness, decreased speed of joint motion, with repeated effusions, and evidence of swelling. It was further noted he was unable to stand for more than a few minutes and unable to walk more than a few yards. He used a cane for ambulation. The examiner indicated that the Veteran was had not been seen since service for his knee until 1997 when an arthroscopy was performed for a torn ACL and medial meniscus. Some degenerative joint disease was noted at that time. Physical examination revealed an antalgic gait. X-rays of the right knee revealed a vascular graft posterior to the right knee. Some vascular calcification was also seen about the right knee. There was mild narrowing of the medial joint space of the knee consistent with some degenerative change. There was no fracture or dislocation noted of the knee. The examiner stated that there were no records in what seemed to be a very complete record of any injury of the right knee by a bomb nor did the Veteran have any scars to validate this injury. The examiner also stated that even if it was to be assumed that the injury took place, there were no records and no commendations for such an injury in combat. He also stated that the Veteran's comment that he had a torn ACL in 1945 was illogical inasmuch as that diagnosis was only made with significant shift (which would have required the Veteran to have been seen) since scope and magnetic resonance imaging (MRI) were unavailable then and the diagnosis of torn ACL was associated with a major shift, a situation that would prevent walking for very long. According to the examiner, it was unlikely that someone who worked in the VA system and therefore was aware of the benefits available for service-connected disabilities would not find the right knee subject to service connection if he had even a possible service-connected problem. The examiner also indicated that it is unlikely that someone who worked as a physician would be hesitant to see someone before 1997 if he had a knee problem. According to the examiner, the Veteran's present knee x-rays were better than the majority of non-injured folks his age, not what would be seen with a circa 1945 injury. In March 2013, the Veteran and his son testified before the undersigned Acting VLJ. The Veteran stated that his job in the Navy was as a medical corpsman. He related that during World War II, he and other sailors stationed at Clark Field in the Philippines searched for planes that were shot down so that they could be saved for salvage. On one outing, he and another service member were in an area where a bomb exploded and he sustained shrapnel in his right knee. His fellow service member then helped him back to a doctor that the Veteran worked with (performing amputations) and the doctor treated him right away, removing two pieces of shrapnel. He stated that he was treated in the field, not at a hospital, and after the shrapnel removal, he was sutured. He related that he was told by the doctor to convalesce for two weeks, and that he used a stick to help him ambulate because he was still needed as a corpsman due to a shortage of medical personnel. As a corpsman, he thereafter treated himself. He testified that years later, after he had gone to medical school and become a medical doctor, he was hospitalized for another condition and the doctor that performed surgery tried to encourage him to get a knee replacement, which he refused. He later required debridement of scar tissue and repair of his knee when he had difficulty walking. He testified that there was nothing in his service treatment records regarding his right knee injury because he was treated in the field for removal of the shrapnel and sutures, and thereafter, because of his skill as a corpsman, he treated himself. He stated that after service, he had no other incident involving his right knee and he attributed the pathology he had to the wound he sustained during service. He also related that his SFW of the right knee arose out of the same explosion that caused his service-connected tinnitus and hearing loss. VA treatment records and Virtual VA records show periodic complaints and treatment for right knee pain in recent years. Most of these records are unrelated to his right knee complaints. In the case of a veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. 38 U.S.C.A. § 1154(b) (West 2002). So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of incurrence or aggravation in combat service is of no consequence. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002). In this case, the evidence of record shows that the Veteran's military occupational specialty (MOS) was pharmacy mate while on active duty in the Philippines during World War II. He has indicated that he was a medical corpsman during that time and that he performed medical services with a physician. Although his direct involvement in combat during that time cannot be verified, the same information provided by the Veteran and researched by the Joint Service Research Unit Records Center (JSRRC), indicates that his unit was stationed at Clark Field in Luzon, Philippines at that time. Moreover, this is the same information that was used to determine that the Veteran warranted service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus. As such, the Board accepts that the Veteran is a combat Veteran for purposes of this claim. The Board is also required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As such, it can be said that the Veteran's lay statements are consistent with the circumstances and conditions of that time and the circumstances of his service. The Veteran in the present case also possesses the experience and training to give a medical opinion. He served as a corpsman and subsequently became a medical doctor, and is thereby competent to testify on certain issues that a layperson may not. He is deemed competent to recall injuring his knee and to identifying the general nature and severity of the injury. The Veteran is also competent to discuss the treatment that occurred to his knee in the field, and to discuss the continued treatment he provided himself thereafter. Consideration has also been given to the conflicting medical opinions of record. In addition to the Veteran's opinion as to the etiology of his right knee injury, the Veteran submitted two positive medical opinions as to the etiology and onset of his right knee disorder. Dr. R.L.S. treated the Veteran for his right knee injury and performed the resection of the stump ACL and partial medial meniscectomy. He was unable to provide records of his treatment because they were destroyed in Hurricane Katrina. He did, however, report the history given at that time by the Veteran as to the onset of his right knee injury. The United States Court of Appeals for Veterans Claims (Court) has held that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In this regard, based on the statements given to Dr. R.L.S. in connection with his treatment of the Veteran, Dr. R.L.S. indicated that the findings related to the Veteran's right knee injury were consistent with a shrapnel injury. The other positive private opinion, written by Dr. T.P.F., gives an identical history as to the onset and etiology of the Veteran's right knee injury. He clearly indicated that it was his belief that the Veteran's right knee injury was sustained in 1945, because of the acceleration of the osteoarthritis. Both of these opinions are probative of the etiology of the Veteran's right knee injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board recognizes that the October 2009 VA examiner opined that the Veteran's right knee injury was not the result of a SFW in service because of the lack of records indicating this injury and the lack of scars to validate this injury. However, the lack of records identifying the original injury does not negate the Veteran's ability to credibly report the injury and some original scarring, however faint, was noted at the Veteran's recent hearing before the Board. Thus, since the opinion is in part based on false assumptions concerning the lack of documentary evidence and an inaccurate assessment of the evidence, the Board finds this opinion to be of less probative value than the opinions in favor of the claim. Therefore, based on the more persuasive and probative medical opinions in support of the claim, and the Veteran's own statements as to the onset and etiology of his right knee injury, the Board finds that the evidence of record supports the conclusion that the Veteran's residuals, SFW, right knee, to include an ACL tear and arthritis, were incurred during active service. Accordingly, service connection for residuals, SFW, right knee, to include an ACL tear and arthritis, is warranted. ORDER The claim for service connection for residuals, SFW, right knee, to include an ACL tear and arthritis, is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs