Citation Nr: 1312787 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 03-21 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a left wrist fracture. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO, among other things, denied entitlement to service connection for right knee disability and denied the Veteran's application to reopen his previously denied claim for entitlement to service connection for residuals of left wrist fracture. In June 2005, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ). In December 2005, the Board remanded the case for additional development. In April 2009, the Veteran was informed that the VLJ who conducted his June 2005 hearing was no longer employed by the Board; and therefore, he had the right to an additional hearing. The Veteran responded indicating that he wanted an additional hearing. In June 2009, a hearing was held before the undersigned. The appeal was remanded in November 2009. In January 2012, the Board reopened and remanded the claim of entitlement to service connection for residuals of a left wrist fracture. The issue of entitlement to service connection for right knee disability was also remanded for further development. On review, there was substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has residuals of a left wrist fracture that are related to active military service or events therein; and there is no evidence of left wrist arthritis manifested to a compensable degree within one year following discharge from service. 2. The preponderance of the evidence is against finding that any current right knee disability is related to active military service or events therein; and there is no evidence of right knee arthritis manifested to a compensable degree within one year following discharge from service. CONCLUSIONS OF LAW 1. Residuals of a left wrist fracture were not incurred in or aggravated by service, and left wrist arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). 2. A right knee disability was not incurred in or aggravated by service, and right knee arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.306, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By letters dated in September 2002, December 2005, March 2006, January 2010, March 2010, and July 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will obtain. He was also provided notice how VA assigns disability ratings and effective dates. The appeal was most recently readjudicated in the August 2012 supplemental statement of the case. VA has also satisfied its duty to assist. In this case, VA obtained the Veteran's service treatment records, service personnel records, and identified post-service private and VA treatment records, as well as records from the Social Security Administration (SSA). The Veteran was afforded a February 2012 VA examination as to the etiology of his right knee disability. An addendum was provided in May 2012. On review, the VA opinion provides an adequate basis on which to decide the claim. The examiner reviewed the claims folder, considered the Veteran's reported history, and provided adequate rationale for his opinion. The Board acknowledges that the Veteran was not provided a VA examination to determine the nature and etiology of his claimed left wrist disability. As discussed in greater detail below, the Board does not find evidence sufficient to establish an in-service left wrist fracture. On review, a VA examination is not necessary regarding this issue. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for entitlement to service connection for left wrist fracture residuals and right knee disability are thus ready to be considered on the merits. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation. Rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, certain chronic diseases, including arthritis, will be service-connected if manifest to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board acknowledges the Veteran's contentions that he is a combat veteran. The Veteran's DD Form 214 does not show any awards or decorations conclusively establishing combat participation. The Veteran filed an Application for Correction of Military Records to reflect an award of the Combat Infantryman Badge (CIB). The Department of the Army, Board for the Correction of Military Records (ABCMR) determined that the Veteran was not entitled to a CIB. Service personnel records show that the Veteran participated in various campaigns while serving in Vietnam and his military occupational specialty was military police. On review, the Board does not find 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) for application. See VAOPGCPREC 12-99, 65 Fed. Reg. 6256 (2000). Residuals of a left wrist fracture In January 2003, the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for residuals of a left wrist fracture. The Veteran disagreed with the decision and subsequently perfected this appeal. As set forth above, in January 2012, the Board reopened and remanded this issue. The Veteran contends that he currently has a left wrist disability related to his active military service. Evidence of record shows a current left wrist disability. For example, VA x-rays dated in June 1999 found evidence of an old, nonunited fracture of the left navicular bone with post-traumatic arthritis of the left wrist. Impression was (1) progressed healing of the recent colles fracture of the distal left radius; and (2) nonunited fracture of the left navicular bone with post-traumatic arthritis of the left wrist. SSA records show disability based on a primary diagnosis of a Colles fracture of the left radius with malunion. The Veteran asserts that he fractured his left wrist during service. Service treatment records do not show complaints, findings or treatment for a left wrist fracture. In a December 1999 statement, however, the Veteran reported that he first injured his wrist jumping in a foxhole during the Tet Offensive in 1968 and that a medic wrapped his wrists with Ace bandages. At the June 2005 hearing, the Veteran testified that he injured his wrist in Vietnam and re-injured it while at Fort Dix. He reported 3 or 4 post-service injuries. The Veteran provided similar testimony regarding his left wrist disability at the June 2009 hearing. The Board observes that medical evidence reflects post-service left wrist injuries. In considering the merits of the claim, the Board notes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); 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). The Board notes that "competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). On review, the Board does not find the Veteran's reports of an in-service left wrist fracture supported by the overall evidence of record. In reaching this conclusion, the Board has considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the Federal Circuit determined that the Board had erred by finding that a claimant's report of in-service psychiatric symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The Board finds, however, that the instant case is distinguishable as the Board is not relying merely upon a general absence of complaints during service. In this regard, the Board notes that on examination for separation in February 1969, the Veteran's upper extremities were reported as normal on clinical evaluation. While the Veteran responded "yes" to whether he had a history of broken bones, he only referenced his preexisting right femur fracture. The Veteran further stated that he was in good health with only some complaints in his right thigh. Again, he did not report or otherwise refer to any in-service left wrist injuries. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Additionally, the Board notes that the Veteran has provided inconsistent history regarding the onset of current left wrist disability. That is, on some occasions he reported only post-service injuries and at other times, referenced the claimed in-service injury. For example, a September 1998 VA treatment record reflects left wrist pain since the 1970's. It was noted that the Veteran had an old left scaphoid fracture nonunion with chronic wrist pain for the last 30 years that had become increasingly symptomatic since a fall about three weeks ago. VA record dated in June 1999 shows that the Veteran presented with left wrist pain status post fracture of the left wrist 1 year ago and status post fall 3 days ago when he fell backwards. VA record dated approximately 2 weeks later indicates that the Veteran had a history of multiple injuries in the past and may have broken it in Vietnam. VA record dated in February 2000 reflects his report that he had a history of 3 wrist fractures and that the "first break was service-connected." A November 1999 private evaluation documents the Veteran's reports that he broke his wrist 4 years prior and then again in April 1999. A September 2002 private record documents the Veteran's reports that he hurt his left wrist in 1967 when he jumped in a foxhole and that he fractured his left wrist again in 1969, 1974, and 1999. The Board has considered the December 1999 statement from the Veteran's sister which indicates that he lived with her shortly after discharge and continually complained that his wrist was bothering him. While she is competent to report her observations, see Layno, this statement does not serve to establish the reported in-service injury, particularly in light of the evidence referenced above. Finally, the Board has considered the VA records that indicate an old left wrist fracture. As discussed, the Veteran reported multiple post-service injuries, to include in 1974. To the extent the records reference 30 years of chronic pain, this appears to be based on the Veteran's reported history of an in-service injury, which the Board does not find supported by the evidence of record. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative); LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). As discussed, the Board does not find the evidence sufficient to establish an in-service injury and there is no evidence of left wrist arthritis during service. Under the circumstances of this case, neither the chronicity nor continuity of symptomatology rules of 38 C.F.R. § 3.303(b) are for application. See Walker. The Board further notes that there is no evidence of left wrist arthritis manifested to a compensable degree within one year following discharge from service. In sum, the preponderance of the evidence is against finding that current residuals of a left wrist fracture are related to active military service or events therein. The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. Right knee disability In January 2003, the RO denied entitlement to service connection for a right knee disability. The Veteran disagreed and subsequently perfected an appeal of this decision. At the June 2005 hearing, the Veteran testified that he had a rod in his right femur at the time he entered active service. He reported that he started having problems in basic training and he has had increased problems over the years. At the June 2009 hearing, the Veteran testified that he hurt his right knee when he fell in a foxhole. He reported that he had a limp and ever since then has had dislocation issues with it. The Veteran argued that the knee was a separate injury but that there was also aggravation from service. Service treatment records show that on pre-induction examination in November 1966, the Veteran reported a right femur fracture in 1958. The examiner noted internal fixation - no residual. In July 1967, the Veteran was seen with complaints of severe pain in the right thigh after physical training. X-ray of the right thigh showed an intramedullary rod present crossing the old fracture site. One screw was present in the femur laterally. In August 1967, the Veteran was seen with a scratch on the knee. On the February 1969 separation examination, all systems, including the lower extremities, were normal on examination. On the contemporaneous report of medical history, the Veteran reported having a "trick" or locked knee. He also reported that he was in good health with some complaints about pain in his right thigh at certain times. The examiner noted pinning of the femur and occasional mild pain. VA records show that the Veteran was involved in an automobile accident in October 1982 and was seen with complaints of extreme pain in the lower leg. X-rays of the right leg did not show a fracture. An August 2002 VA treatment record reflects complaints of right knee pain. The Veteran reported difficulty with the right knee "giving out" on him for the past 10 to 15 years and that the knee has become more painful. A September 2002 x-ray of the right knee reported findings of fluid in the joint, narrowed medial joint compartment, and possible meniscus damage. In October 2003, the Veteran was treated for complaints of sharp, throbbing pain in the right thigh, as well as the left knee, after a "slip and fall." A November 2003 x-ray revealed intramedullary rod and single screw in the mid shaft of the right femur. There were moderate degenerative changes in the knees. Given that the above evidence reflected the existence of current right knee disability that may be associated with service, the Board instructed in its January 2012 remand that the Veteran be afforded a VA examination to determine the nature and etiology of any current right knee disability. A VA examination was conducted by an orthopedic physician in February 2012 and the same physician prepared an addendum in May 2012. The physician examined the Veteran and reviewed the claims file. He noted the Veteran's statement that he injured his right knee in Vietnam. The physician diagnosed right knee degenerative arthritis. As to whether the right knee arthritis was related to service, the physician opined that it was "less likely as not (less than 50/50 probability)" that the Veteran's current right knee disability was related to service. He noted the right femur fracture prior to service, and a reference to being bumped by an APC 48 hours prior to examination and complaining of pain and swelling of the left thigh but not the right. The physician noted that there were no notations in the service records indicating any significant problems involving the right knee. He opined that the limitation of motion in the right knee and probable arthritis (which he subsequently noted was confirmed by x-rays) was more than likely related to trauma from the right femur fracture, which required internal fixation, but that he did not have information specifically as to the nature of the femur fracture. In the May 2012 addendum, the physician again reviewed the medical records from the claims file and listed in-service and post service references to the lower extremities, including the post service 1982 automobile accident and September 2009 reference to a fall three years earlier followed by pain in the right thigh and knee. The physician expressed his opinion that the Veteran's right knee was "less likely as not (less than 50/50 probability)" aggravated by military service. He noted that in his review of the claims file, there were no entries indicating any type of injury or activity that caused aggravation of the right knee condition other than the normal progression of an arthritic condition. In considering 38 C.F.R. § 3.303(b), the Board notes that any manifestation of a chronic disease, such as joint pain, will not permit service connection for the chronic disease associated with the manifestation, i.e., arthritis. To be "shown in service," the disease identity must be established and the diagnosis cannot be subject to legitimate question. Once the chronic disease is shown in service, there is no "nexus" requirement for compensation, as long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker; Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). In this case, the above evidence reflects that arthritis was not shown in service. The separation examination was normal as to the lower extremities, and the only notation as to the lower extremities was the examiner's notation of pinning of the femur and occasional mild pain. Thus, service connection is not warranted under 38 C.F.R. § 3.303(b). See Walker. The evidence also does not show right knee arthritis manifested to a compensable degree within one year following discharge from service and service connection on a presumptive basis is not warranted. The remaining question is whether there is a nexus between the Veteran's current right knee disability and service. The only two opinions on this question are those of the Veteran and the physician who performed the February 2012 VA examination and prepared the May 2012 addendum. The physician's opinion is entitled to substantial probative weight because he explained the reasons for his opinion based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The physician relied in part on the lack of notations of significant problems in the right knee in service or otherwise indicating any type of injury or activity that would have caused right knee arthritis or aggravated it beyond its normal progression. The only contrary opinion is that of the Veteran, who indicated that he hurt his right knee in service when he fell in a foxhole and had problems including a limp and dislocation issues since that time. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony indicating that current right knee disability is related to an in-service fall and subsequent symptoms is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In any event, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the February 2012 VA examiner is of greater probative weight than the Veteran's more general lay assertions. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. To the extent that any issue remains specifically with regard to the right femur, the Board notes that entitlement to service connection for right thigh fracture was denied in January 1983 because it existed prior to service and no aggravation in service was shown. Should the Veteran seek to reopen this previously denied claim, he may do so by filing an application to reopen with the RO. ORDER Service connection for residuals of a left wrist fracture is denied. Service connection for a right knee disability is denied. ____________________________________________ M. CARSTEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs