Citation Nr: 1310229 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 00-16 430A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), including as secondary to service-connected cancer of the larynx. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1962 to April 1964 and from March 1965 to March 1968, including service in the Republic of Vietnam. He additionally had verified service with the Oregon Air National Guard from October 1981 to October 1982, and with the California Air National Guard from February 1983 to February 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, and a March 2012 rating decision issued by the RO in Waco, Texas. In the March 2000 rating decision, the RO, in relevant part, denied the Veteran's claim of entitlement to service connection for a left knee injury. In the March 2012 rating decision, the RO denied his claim of entitlement to service connection for GERD. In November 2003, the Board remanded the Veteran's left knee disability claim for further development. The Board additionally remanded claims of entitlement to service connection for prostatitis and posttraumatic stress disorder (PTSD); however, the PTSD claim was subsequently granted in a May 2011 rating decision and the prostatitis claim was granted in an October 2011 rating decision. Thus, those rating decisions constituted a full grant of the benefits sought on appeal with respect to those claims. The Veteran testified at two hearings before Veterans Law Judges (VLJ) in October 2002 and January 2013. The Veteran was notified in April 2003 that the VLJ presiding over his October 2002 hearing was no longer employed at the Board. The Veteran declined, however, to appear for a new hearing at that time. Nonetheless, the Veteran indicated in his September 2012 substantive appeal (on VA Form 9), that he wished to appear at hearing before a VLJ with respect to his GERD claim. At his January 2013 hearing before the undersigned VLJ, the Veteran offered testimony with respect to both claims on appeal. Transcripts from the Veteran's Board hearings are of record. The issue of entitlement to service connection for a right knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for GERD, including as secondary to cancer of the larynx, 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. VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current left knee disability is not the result of a disease or injury in active service or active duty for training (ACDUTRA), or injury during inactive duty training (INACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. § 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requires notice of what information and evidence not previously provided, if any, that is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). December 2003 and April 2004 VCAA letters from the AMC informed the Veteran of all elements required to substantiate his left knee disability claim in accordance with 38 C.F.R. § 3.159(b). Although the these VCAA letters did not specifically instruct the Veteran regarding the assignment of disability ratings or effective dates, in light of the denial of his claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to him under the holding in Dingess. Ideally, any required VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If for whatever reason it is not, or the provided notice is inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), so that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the issuance of the December 2003 and April 2004 VCAA notice letters, the Veteran's left knee claim on appeal was readjudicated in SSOCs dated in January 2008, February 2009, May 2009, May 2011, and October 2011. Regarding the duty to assist, the agency of original jurisdiction has obtained the Veteran's service treatment records (STRs) and relevant VA and private treatment records. To date, VA has neither afforded the Veteran an examination, nor solicited a medical opinion regarding his claimed left knee disability. However, the Board finds that a VA examination or medical opinion is not necessary to satisfy the duty to assist in this case. Under 38 U.S.C.A. § 5103A(d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence to make a decision on the claim. Id. As discussed below, there is no competent and credible evidence of record suggesting that the Veteran incurred a left knee disability during his service or that his current disability is otherwise associated with his military service. The Veteran's sole contention is that he injured his left knee during a period of active duty for training (ACDUTRA), the clinical record documents the incident the Veteran reports, but also shows that the injury was to the right knee. Under these circumstances, there is no indication that a left knee disability may be related to that incident or to any other incident in a qualifying period of service. The duty to obtain a medical examination or opinion is not triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The RO/AMC substantially complied with the Board's November 2003 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the Veteran's claim in an effort to provide the Veteran required VCAA notice, to obtain private treatment records pertaining to his treatment at a Kaiser Permanente facility, and to obtain STRs pertaining to periods of ACDUTRA or inactive duty for training (INACDUTRA), to specifically include any records pertaining to the training period when he allegedly injured his left knee at Selfridge Air Force Base in Michigan. VCAA notice was provided to the Veteran in December 2003 and April 2004, a treatment report dated in September 1985 pertaining to left knee treatment at Kaiser Permanente was obtained, and the Veteran's service records pertaining to his service with the California Air National Guard and the specific period of ACDUTDRA in question were obtained and associated with the claims file. The Veteran has not indicated that there are other outstanding treatment records that would be relevant to the claim. The May 2012 remand was to afford the Veteran a requested hearing. As noted above that hearing took place in January 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that VA employees, including Board personnel, have two duties in conducting hearings. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the issues were adequately identified during both Board hearings. The VLJs and the Veteran's representatives asked specific questions directed at identifying outstanding evidence that could substantiate his left knee disability claim. He was asked about treatment and was asked questions aimed at eliciting evidence that he had symptoms meeting the criteria for service connection for a left knee disability. Information provided at his October 2002 hearing lead to the Boards remand to get additional STRs and private treatment records. At the January 2013, the undersigned indicated that the missing evidence consisted of verification of the Veteran's period of ACDUTRS, but this was before having an opportunity to evaluate the credibility of the Veteran's testimony and other evidence, and in reliance on the ROs reasons for denying the claim. As such, the Bryant duties were met in both hearings. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating his claim on appeal. II. Service Connection A. Governing Law and Regulations 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 (West 2002); 38 C.F.R. § 3.303 (2012). With respect to Reserve or National Guard training, applicable laws and regulations permit service connection only for a disability resulting from disease or injury incurred in or aggravated coincident with ACDUTRA, or for a disability resulting from injury during INACDUTRA. See 38 U.S.C.A. § 101 (22), (23), (24) (West 2002); 38 C.F.R. § 3.6 (2012). 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) (table). Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption also does not apply, however, to ACDUTRA and INACDUTRA service, only active duty. The same is true of the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her 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 v, 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, 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). The 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, 2 Vet. App. at 618. 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 Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis A review of recent VA treatment records reveals that the Veteran currently has degenerative arthritis of the left knee. Extensive VA clinical records note ongoing treatment for left knee pain beginning as early as April 1996. Clearly these records establish that the Veteran has a current left knee disability. See Davidson, supra. The Veteran attributes his current left knee disability to an injury sustained while playing baseball at Selfridge Air Force Base during a period of ACDUTRA with the California Air National Guard in the late 1980's. In a December 2003 statement, he contended that he injured his left knee sometime between 1980 and 1984 while serving in a period of ACDUTRA at Selfridge Air Force Base in Michigan. At the recent Board hearing, he initially testified that the injury occurred "probably" between 1960 and 1982, while serving in the California Air National Guard. He acknowledged reports of a right knee injury, but contended that the injury was actually to the left. Later in the hearing he stated that the injury was in 1980 or 1982. He later recalled that he had not moved to California until 1982 and that was when he joined the California Air National Guard. The claims file contains service treatment records (STRs) dated in July 1984; however, revealing that the Veteran suffered an injury to his right leg and knee, while playing in a squadron softball game. A July 1984 line of duty determination revealed that the Veteran was in status with the Air National Guard of the United States at the time of his injury, and that he was not under the influence of alcohol or drugs at the time of his injury. The report additionally noted that he was initially treated at St. Joseph Hospital in Mt. Clemens, Michigan. Multiple treatment records from St. Joseph Hospital reveal that emergency treatment, including X-rays, was rendered on the Veteran's right knee, and not his left. Subsequent STRs from his service with the California Air National Guard show ongoing treatment for right knee pain at Van Nuys Air National Guard Base and Los Angeles Air Force Station. A report dated on July 14, 1984, noted that he was assessed with having torn ligaments in his right knee while on duty in Michigan. A later report, dated on July 18, 1984, clarified that there was no evidence of cartilage or ligament tear and that the Veteran probably suffered a simple knee strain. None of the referenced treatment reports detail any injury or treatment rendered to the Veteran's left leg or knee. Given the clear evidence of record indicating that the Veteran's sustained an injury to his right knee rather than his left under the specific circumstances described by the Veteran, and given the lack of evidence of record of any left knee injury noted to have taken place during the Veteran's active service or during any period of National Guard train gin, the Board is without recourse to find that the Veteran sustained a left knee injury during service. The Veteran himself has made no contention regarding any other in-service disease, event, or injury which led to the development of his current left knee disability, and no such contention is raised in the record. This finding is additionally supported by the private evidence of record. A September 1985 treatment report from Kaiser Permanente showing treatment for left knee pain indicated that the Veteran struck his left knee while at work and that he complained of pain and swelling in his knee as a result of the injury. He was assessed with status post-left knee trauma. X-rays of his left knee revealed negative results. Notably, the treatment report did not note give any indication that the Veteran had sustained a prior left knee history during his military service. While the Veteran is competent to report an in-service left knee injury; his reports are contradicted by multiple contemporaneous clinical records. He has also exhibited difficulty in recalling the specifics of the injury, such as the date it occurred. Hence the Board finds his reports of a left knee injury while on ACDUTRA to not be credible. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements for service connection in the case of chronic disease are through a demonstration of continuity of symptomatology. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Fed. Cir. Feb. 21, 2013). Continuity of symptomatology may be established if a claimant can demonstrate (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Veteran reported at the hearing that he had experienced left knee symptoms ever since the in-service injury, but this was only after prompting by the undersigned and he did not provide any other details. The report of ongoing symptoms since an in-service injury is not credible because the reports of the in-service injury are not credible and because the 1985 treatment record contradicts the reports of symptomatology that had been ongoing since approximately 1982. There is no other evidence of left knee injury in a qualifying period of service, nor is there any other evidence linking a current disability to service. Accordingly, the evidence is against a finding that the Veteran sustained a left knee injury during service as he has contended, or that any in-service disease, event, or injury has subsequently resulted in the development of his current left knee disability. Unfortunately, given the passage of time between the Veteran's in-service injury and the date of his claim, it appears that he is simply mistaken as to which knee actually sustained the injury. The evidence regarding this claim is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for a left knee disability must be denied. ORDER Entitlement to service connection for a left knee disability is denied. REMAND The Veteran contends that he developed GERD as secondary to service-connected cancer of the larynx. In the alternative, he contends that his service-connected larynx cancer has aggravated GERD. Notably, he has not claimed that he incurred GERD on a direct basis during or as a result of his active service. The record reveals that the Veteran was afforded a VA examination for esophageal conditions in November 2011. While the VA examination report does not indicate whether a diagnosis for a specific gastrointestinal disability was made, the examiner indicated that the opinion requested was whether the Veteran's GERD was at least as likely as not proximately due to or the result of cancer of the larynx. Here, the examiner opined that the Veteran's claimed disability was less likely than not incurred in or caused by any claimed in-service injury, event, or illness. The examiner further opined that it was less likely than not that the Veteran's claimed disability was proximately due to or the result of his service-connected condition. To rationalize his opinion, the examiner indicated that rather than causing GERD, cancer of the larynx might instead be caused by GERD. The VA examiner did not specifically provide an opinion as to whether it was at least as likely as not that the Veteran had GERD that was aggravated by his service-connected cancer of the larynx. Therefore, the opinion is inadequate for adjudicating the Veteran's claim for service connection for GERD on appeal. See 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Therefore, this claim must be remanded in order to afford the Veteran a new VA examination to diagnose all current upper gastrointestinal tract disabilities found to be present and to specifically determine whether any such disability was incurred as a result of or aggravated by his service-connected cancer of the larynx. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be provided). A review of the record additionally reveals that the Veteran may not have received legally adequate notice with respect to substantiating his claim for service connection for GERD on a secondary basis. Accordingly, this claim is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with required VCAA notice concerning (1) the information and evidence not of record that is necessary to substantiate a claim for service connection for GERD as secondary to service-connected cancer of the larynx (see 38 C.F.R. § 3.310); (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Schedule the Veteran for a new VA examination to determine the relationship between GERD and cancer of the larynx. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all disabilities of the upper gastrointestinal tract, to include GERD, found to be present. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current upper gastrointestinal tract disability was caused (in whole or in part) by the Veteran's service-connected cancer of the larynx or any residual disability of the cancer. The examiner should also specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that that any current upper gastrointestinal tract disability was aggravated (permanently made worse) by the Veteran's service-connected cancer of the larynx or any residual disability of the cancer. The examiner must provide reasons for these opinions, addressing all relevant medical and lay evidence of record. 3. Thereafter, review the claims file to ensure that the foregoing requested development, including the VA examination report, has been completed. If any requested development is not complete, implement corrective procedures. 4. If any claim on appeal remains denied, issue a supplemental statement of the case, and then return his appeal to the Board, if otherwise in order. The Veteran 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs