Citation Nr: 1313442 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-21 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right knee degenerative arthritis. 2. Entitlement to service connection for a left knee degenerative arthritis, including as secondary to the right knee degenerative arthritis. REPRESENTATION Appellant represented by: Scott Baker, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 8, 1978, to April 10, 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in July 2009. A transcript of the hearing is associated with the claims file. In September 2009, March 2011 and July 2012, the case was remanded for further 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 a left knee degenerative arthritis, claimed as secondary to right knee degenerative arthritis 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. FINDINGS OF FACT 1. The Veteran's lower extremities were found to be normal at his February 1, 1978 pre-induction examination with no right knee pathology noted. 2. Subsequent to reporting for duty on March 8, 1978, he developed pain in the right knee and was diagnosed with degenerative arthritis. 3. Pursuant to Medical Board proceedings, the Veteran was discharged from service on April 10, 1978 due to the right knee disability. 4. Although the evidence clearly and unmistakably shows that the Veteran's right knee disability pre-existed service, it does not clearly and unmistakably show that such disability was not aggravated by service. CONCLUSIONS OF LAW 1. The Veteran's right knee must be considered as having been sound on entry into service. 38 U.S.C.A. §§ 1111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.304(b) (2012). 2. The criteria for entitlement to service connection for right knee degenerative arthritis are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Analysis The law provides that every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted." 38 C.F.R. § 3.304(b) To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Veteran's service treatment records show that at his February 1, 1978 pre-induction examination, the lower extremities were found to normal and no knee pathology was noted. The Veteran subsequently reported for duty on March 8, 1978. A March 18, 1978 orthopedic consultation request shows that he was noted to have been experiencing right knee pain for the last week with swelling for the past 3 days. The subsequent consultation report shows a diagnosis of degenerative arthritis of the right knee and found that he was not fit for duty. A March 24, 1978 examination report then indicates that the Veteran had not begun the regular course of training but that even in doing physical training, he had begun to have pain in both knees, worse on the right. X-rays showed moderate degenerative changes in the patellofemoral area of the right knee with bony spurs and the diagnosis was degenerative arthritis of the right knee, secondary to old trauma. Separation from service was recommended and the Veteran was subsequently discharged on April 10, 1978. An April 2005 private medical record shows a diagnosis of advanced degenerative arthritis, both knees. May 2005 VA records similarly show severe bilateral degenerative joint disease. In an April 2007 statement, the Veteran indicated that his injury to both knees occurred when he fell into a foxhole. In a July 2009 medical opinion, a private orthopedic surgeon noted that the Veteran had apparently had arthritis of the right knee prior to entrance into service on March 8, 1978. While going through training, he sustained a twisting injury to his right knee when he stepped in a hole and experienced acute pain and swelling and increased difficulty with his knee, which led to his discharge. Since discharge he had had chronic pain and swelling in his knee and had progressive arthritis to the point of bone on bone changes. He was being evaluated for a total knee replacement. The physician opined that the injury the Veteran sustained in the military did significantly aggravate his pre-existing right knee degenerative joint disease. During the July 2009 Board hearing, the Veteran testified that the private physician who provided the July 2009 medical opinion reviewed his service treatment records and current treatment records prior to providing the opinion. At a February 2010 VA examination, the examiner found that the Veteran had marked degenerative changes in the right patellofemoral area prior to his enlistment because arthritis took a long time to present and cause damage. The examiner noted that the Veteran's severe arthritis was not usually seen in someone his age without a significant history of trauma. The fact that at age 21 he had changes of arthritis as described made the examiner conclude that the Veteran had a genetic predisposition to degeneration of his joints which would have progressed to its current state regardless of his military service. During a January 2013 VA examination, the examiner indicated that it takes years for degenerative arthritis to evolve. The examiner noted that as the Veteran had degenerative changes discovered at the time of his in-service knee injury, his right knee condition must have occurred prior to his time in the service. Thus, the examiner found that the right knee disability clearly and unmistakably existed prior to service. The examiner also noted that the Veteran already had documented changes of degenerative arthritis in the right knee during service. He then went an additional 30 years before having a knee replacement, which was an excellent outcome for having documented arthritis at such an early age and eventually requiring a knee replacement. Thus, the examiner found that the pre-existing knee disability was clearly and unmistakably not aggravated by service. As the Veteran's lower extremities were found to be normal during his pre-induction examination with no knee pathology noted and as knee problems were not noted until after the Veteran entered service, his right knee must be considered sound upon entry. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. 38 C.F.R. § 3.304(b). As noted, the January 2013 VA examiner did find that the Veteran's right knee disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. Also, the February 2010 VA examiner's overall conclusion that the Veteran had a genetic predisposition to degeneration of his joints which would have progressed to its current state regardless of his military service also tends to indicate that the right knee disability pre-existed service and was not aggravated by service. However, the July 2009 private physician specifically opined that the injury the Veteran sustained in the military did significantly aggravate his pre-existing right knee degenerative joint disease. Thus, although all three medical professionals agreed that the right knee disability pre-existed service, the July 2009 physician disagreed as to whether aggravation occurred. Consequently, while the evidence clearly and unmistakably shows that the right knee disability pre-existed service, it does not clearly and unmistakably show that the right knee disability was not aggravated by service. Id. Accordingly, the presumption of soundness has not been rebutted. Id. Given that, for purposes of this appeal, the Veteran's right knee must be considered sound on entry into service, the evidence then shows that he was diagnosed with right knee arthritis during service and that he has continued to suffer from the problem up until the present day. Accordingly, service connection for this disability is warranted on the basis that it was incurred in service. 38 C.F.R. §§ 3.303, 3.304, 3.322; Wagner, 370 F.3d 1089, 1096 (Fed. Cir. 2004). ORDER Service connection for right knee degenerative arthritis is granted. REMAND The Veteran has left knee arthritis, which has resulted in him undergoing a left knee total replacement. He has primarily alleged that this left knee disability has been caused by having to compensate for his right knee disability (i.e. right knee arthritis). However, his service treatment records show that he did experience left knee pain in service, thus indicating that there could be a direct relationship between the current left knee disability and the Veteran's military service. The January 2013 VA examiner, after examining the Veteran and reviewing the claims file, did opine that the Veteran's left knee disability is less likely than not proximately due to or the result of his right knee disability, reasoning that left knee condition was similar to the Veteran's right knee condition and noting that right knee arthritis does not spread and cause left knee arthritis. He concluded that whatever caused the Veteran's right knee arthritis likely led to his left knee arthritis. The examiner also found that the Veteran did not have a left knee injury while in service. It appears from the examination report that the examiner was relying on this "no injury in service" finding as a rationale for the broader finding that the Veteran's current left knee disability was less likely than not related to service. However, the Board notes that while no acute left knee injury was shown during service, the service treatment records include a notation of left knee pain made during a March 24, 1978 orthopedic examination. There is no indication from the record that the January 2013 VA examiner was aware of this notation when he concluded that the Veteran had not suffered a left knee injury in service. Also, as noted above, in determining that the left knee disability was less likely than not proximately due to or the result of the right knee disability, the examiner concluded that the Veteran's left knee disability was similar to the Veteran's right knee disability and that whatever caused the right knee disability likely caused the Veteran's left knee disability. This opinion suggests that the left knee disability may have also pre-existed the Veteran's military service. However, as explained above, the Veteran was not noted to have any pre-existing left knee disability at entrance into service and thus, his left knee must be presumed sound on entry, unless there is clear and unmistakable evidence that the disability pre-existed service and clear and unmistakable evidence that it was not aggravated by service. Given the nature of the examiner's findings, an addendum opinion which addresses the timing of the onset of the left knee disability and which addresses whether service caused or aggravated the left knee disability (with specific consideration of the left knee pain noted in service) is necessary prior to final adjudication of this claim. The examiner should also provide an addendum concerning whether the right knee disability caused and/or aggravated the current left knee disability. In providing this opinion, the examiner should specifically consider findings, documented as early as June 2009 that the Veteran was walking with an abnormal gait (See e.g. July 2009 VA physical therapy gait evaluation). Accordingly, the case 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. Arrange to have the Veteran's claims file returned to the VA physician who examined the Veteran in January 2013. After reviewing the claims file, including the additional evidence received since the time of January 2013 VA examination, the service treatment records, the post-service medical records, the July 2009 VA physical therapy consultation, the February 2010 VA examination report, the January 2013 VA examination report, the assertions of the Veteran and his representative, and any other information deemed pertinent, the physician should provide a supplemental report setting forth opinions with respect to each of the following questions: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran's left knee disability existed prior to his entry into the military? b. If it is clear and unmistakable that the Veteran's left knee disability existed prior to his entry into the military, is it also clear and unmistakable (i.e., obvious, manifest, or undebatable) that it underwent no chronic or permanent increase in severity during the Veteran's period of active duty service? (The examiner should specifically consider the significance, if any, of the finding of left knee pain noted during the March 24, 1978 orthopedic examination in service). c. Is it at least as likely as not (i.e., a 50% chance of better) that the Veteran's current left knee disability is causally related to his military service, to include the left knee pain suffered therein? d. Is it at least as likely as not (i.e. a 50% chance or greater) that the Veteran's current left knee disability was caused and/or aggravated by his right knee disability? In considering whether the left knee disability was caused or aggravated by the right knee disability, the examiner should specifically consider the significance, if any, of the findings of abnormal or antalgic gait documented as early as June 2009 and specifically evaluated during a July 2009 VA physical therapy consultation. The examiner should explain the reasoning for all opinions provided. 2. The RO/AMC should review the VA physician's supplemental report to ensure that it is in compliance with the Remand instructions. If not, corrective action should be taken immediately. 3. If the benefit sought remains denied, furnish a supplemental statement of the case to the Veteran and his representative, and afford them an opportunity to respond. Thereafter, the claims file should be returned to the Board, if otherwise in order. 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. 2012). ______________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs