Citation Nr: 1312472 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-32 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Cleveland, Ohio (Tiger Team), Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for left knee disorder and depression. Jurisdiction over the Veteran's claims file has been transferred to the RO in Montgomery, Alabama. In November 2011, and October 2012, the Board remanded the claims for additional development. 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). The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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 The evidence of record does not demonstrate that the Veteran has a left knee disability that was caused or aggravated by his service. CONCLUSION OF LAW A left knee disability was not caused or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (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 I. Service Connection The Veteran and his representative contend that service connection is warranted for a left knee disability. The appellant asserts that he was injured in service playing on the Edwards Air Force base football team when someone stepped on his left knee with a pair of cleats. He has testified that he was hospitalized for his injuries, which included the left ankle (in May 2007, the RO denied a claim for service connection for a left ankle disability). Service connection may be granted for 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. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran's service treatment records (STRs) are not available and may have been destroyed in the 1973 fire at the NPRC. In this regard, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision...." when there are lost or missing STRs. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). But missing records concerning a Veteran's service, while indeed unfortunate, do not lower the threshold for an allowance of a claim. No presumption, either in favor of the claimant or against VA, arises in this circumstance when there are lost or missing service records. See Cromer, 19 Vet. App. 215 at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown.). The legal standard for proving the claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. As for the post-service/non-service medical evidence, it consists of VA reports, dated between 2006 and 2012, and a statement from a private health care provider. The VA reports show that the Veteran has been diagnosed as having "arthritis". This condition is not further described or characterized. A March 2011 progress note makes reference to the Veteran's complaints of knee and leg pain. A November 2012 note referenced the Veteran's endorsement a history of knee and shoulder pain since service. However, an examination of the musculoskeletal system was essentially normal. He had a full range of motion with no stiffness. A diagnosis of arthritis was again included in the assessment. A statement from J.J.C., M.D., received in October 2008, shows that this physician indicates that he has treated the Veteran for diabetes mellitus, anemia, hyperlipidemia, diabetic retinopathy until March 2008, and that the Veteran was hospitalized in August 2002 with febrile illness, hyp[illegible] with dysfunction, and elevated blood pressure. Dr. C notes that the Veteran has diabetes mellitus, diabetic retinopathy, and elevation of lipids, that his last visit was in March 2008, and that he "only comes sporadically." There are no references to a knee disorder. With regard to the claim for a left knee disorder, the VA progress notes contain many notations of arthritis, but this condition is not further described or characterized. A report, dated in March 2011, shows that the Veteran complained of pain in his knees and legs. The assessments included arthritis. There is no actual finding in that record, or any other record, that the diagnosis of arthritis has been ascribed to the Veteran's left knee. There is actually no medical record diagnosing the Veteran as having any disability of the knee. The Board is simply unable to conclude that the Veteran has a qualifying disability from the notation of knee pain. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). However, even assuming the existence of left knee arthritis, the earliest such notation is dated in 2006, which is about 53 years after separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection). There is simply no objective medical evidence demonstrating a chronic knee disability in service, a diagnosis of arthritis of the left knee within one year of service discharge, or a competent opinion relating the Veteran's current left knee disorder to his active service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Indeed, even when he presented an alleged history of knee pain since service, the contemporaneous physical evaluation detected no knee disorder; and, for that matter, the examiner made no pertinent findings with regard to the knee. The preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a disability of the knee, including arthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A disability of the knee is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. Specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). A diagnosis of arthritis would necessitate X-rays showing the degenerative process. That is, although the Board readily acknowledges that Veteran is competent to report symptoms of knee pain, there is no indication that the Veteran is competent to etiologically link his current left knee complaints of pain to his purported knee injury that occurred over 50 years ago. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Veteran's assertion of continuity of symptomatology has also been considered. However, notwithstanding the fact that the record lacks a current diagnosis of a chronic left knee disability, this assertion is questionable. A review of the record shows that the Veteran's treatment for arthritic pain began in 2006, but that there was no reference to his active service until 2012. Such is significant. Had the Veteran truly been experiencing chronic left knee pain since service, it would have clearly been in the Veteran's best interest to report such a history to his care providers. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The fact that waited over six (6) years to provide such a history causes the Board to question the veracity of the statement. His continuity of symptomatology argument therefore carries little to no probative value. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim for service connection for a left knee disability must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in December 2006, March 2007, and December 2012. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Board first notes that the Veteran's service treatment reports are not available. Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment reports. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). The Board is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, responses from the National Personnel Records Center (NPRC), dated in February and March of 2007, indicate that there are no service treatment records available, and that they may have been destroyed in the 1973 fire at the NPRC. In April 2007, following receipt of a "request for information needed to reconstruct medical data" (NA Form 13055) received earlier that month, the NPRC reported that Morning Reports had been searched between September through December of 1952, and that no sick/hospital remarks were found for the Veteran. In December 2010, the RO contacted the Veteran and informed him that his service treatment reports may have been destroyed, and requested that he provide any service treatment reports. See 38 C.F.R. § 3.159(e) (2012); Dixon; see also September 2008 hearing transcript. In April 2011, the RO issued a memorandum in which it determined that all procedures to obtain the Veteran's service treatment reports had been correctly followed, that all efforts have been exhausted, and that further attempts would be futile. See 38 C.F.R. § 3.159(d) (2012). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has not been afforded VA examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, as discussed above, there is no competent evidence of a current disability of the left knee. There is also no competent evidence to show that a left knee disability (if such were shown) is related to the Veteran's service. There is simply no competent or credible opinion on either element of the McLendon analysis. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Simply stated, the Board finds that the post-service medical record provides evidence against this claim. Some discussion of the Veteran's September 2008 decision review officer (DRO) hearings is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified at the September 2008 DRO hearing. Testimony was elicited from the Veteran with respect to the onset of his left knee disorder and his post-service treatment of the same. Relevant evidence was identified. As a direct result of this testimony, the Board remanded the matter to obtain these outstanding VA treatment records. Finally, in November 2011 and October 2012, the Board remanded this claim. In its October 2012 remand, the Board noted that it had remanded the claim in November 2011 in order to obtain all VA treatment records related to the Veteran's left knee and depression from September 2008 to the present. The Board further noted that VA electronic treatment records from September 2008 to November 2011 were made available in connection with the Veteran's claims. However, in an August 2012 Supplemental Statement of the Case, the AMC/RO indicated that it had reviewed the Veteran's VA treatment records from Central Alabama Medical Center from October 2008 to June 2012, and the Board pointed out that the entirety of those records have not been made available to the Board for review. The Board therefore directed that VA outpatient records from November 2011 to the present be obtained and reviewed, and that following such development, the RO/AMC should review and adjudicate the claims. Records from the VA Medical Center in Montgomery, Alabama, were subsequently obtained and associated with the claims file, and in February 2013, the Veteran's claims were readjudicated. Given the foregoing, the Board finds that there has been substantial compliance with its November 2011 and October 2012 remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against this claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to service connection for a left knee disorder is denied. REMAND The Board first notes that in addition to diagnoses of depression, the medical evidence now shows that the Veteran has been diagnosed with PTSD. See November 2012 VA progress note. He has previously provided a history of in-service harassment, which led to depression. See Veteran's statement dated December 2006. Thus, although VA has previously framed the issue solely as one involving depression, the issue in this case must be framed broadly, and it has been recharacterized as "entitlement to service connection for an acquired psychiatric disorder, to include PTSD." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the issue involves both an acquired psychiatric disorder (other than PTSD), and PTSD, these are considered to be inextricably intertwined, and they must therefore be adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). This issue must be remanded for additional due process considerations. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Specifically, the agency of original jurisdiction (AOJ) has not considered the issue of service connection for PTSD, nor has the Veteran been advised of the law pertaining to PTSD claims. See 38 C.F.R. § 20.903(b) (2012) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "could result in denial of the appeal"); see also 38 C.F.R. § 3.304(f) (2012); McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). The Board also notes that the November 2012 progress note indicated that the Veteran was being referred to mental health services. Those records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Issue a corrective VCAA notice with regard to the issue on appeal, now characterized as "entitlement to service connection for an acquired psychiatric disorder, to include PTSD." 2. Obtain the Veteran's complete clinical record, especially any mental health records, from the Montgomery VA Medical Center since November 2012. Any negative development should be included with the claims file. 3. The RO/AMC should then review the evidence of record and make a determination as to whether any additional development is warranted, to include obtaining a VA examination to determine the nature and etiology of any acquired psychiatric disorder including depression and PTSD. 4. After the development discussed above has been completed, and after conducting any other development deemed appropriate, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and afforded an adequate 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. 2011). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs