Citation Nr: 1316332 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 07-13 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a back disorder, to include on a secondary basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for bilateral knee and back disabilities. This case was previously before the Board on several occasions, most recently in January 2013, and was remanded for additional development and/or to ensure due process. The claim for service connection for a back disability, to include on a secondary basis 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 Veteran's bilateral arthritis of the knees may not be disassociated from his in-service knee complaints. CONCLUSION OF LAW Bilateral knee arthritis was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the claim for service connection for a bilateral knee disability, no further discussion of compliance with the duties to notify and assist is warranted at this time. The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 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 are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Arthritis is included in 38 C.F.R. § 3.309. The service treatment records disclose the Veteran complained of a bruise on his right knee in July 1979. He stated he hit his knee with a hammer. The assessment was slight bruise. In August 1983, he reported he hurt his right knee while playing football the previous day. The assessment was contusion. In November 1985, he asserted he hurt his left knee during physical training. The assessment was to rule out knee strain. He was seen several days later and complained of left knee pain. He claimed that while playing football a few days earlier, he fell. An examination revealed slight edema of the left knee and pain to palpation. The assessment was to rule out medial meniscus or medial collateral ligament contusion versus medial collateral ligament tear. Later that month, it was noted the Veteran had full range of motion without pain on movement. He maintained the knee hurt when bending it back. The assessment was rule out pulled ligament. The lower extremities were evaluated as normal on the separation examination in June 1986. Personnel records reflect the Veteran was a cannon crewman, cannoneer, gunner and assistant gunner. He received an assault badge. VA outpatient treatment records have been associated with the claims folder. An X-ray study of the left knee in July 2003 revealed degenerative disease. In March 2004, the Veteran related he had been seen during service for knee problems. The assessment was chronic bilateral knee pain. X-rays the next day demonstrated osteoarthritis of both knees. The Veteran was afforded a VA examination in May 2005. He stated his bilateral knee condition had existed for six years, and indicated it occurred spontaneously. The Veteran submitted statements dated January 2007 from several friends. One writer, an attorney, related he had known the Veteran for about 15 years. He observed he had talked with the Veteran regularly for the last five or six years and had discussed his health problems, as well as his belief that his conditions began in service. The attorney noted the Veteran's belief his knee problems could be traced to service. In February 2009, a chiropractor related he had examined the Veteran that month for complaints of bilateral knee pain. After discussing the Veteran's current complaints, including active duty medical records and a physical examination, the chiropractor stated the Veteran had degenerative joint disease of both knees. Based on the degenerative changes shown on X-rays, the chiropractor stated it appeared the injury/trauma to the knees had occurred about 25 to 30 years earlier. The report indicates the Veteran stated he had repetitive injuries to the knees from jumping out of airplanes, as well as having been hit in the knees with a sledge hammer. The examiner concluded it was as likely as not that the degenerative knee joints were a direct result of in-service trauma. Following a VA examination of the joints in April 2009, the examiner concluded the Veteran had degenerative arthritis of the knees. He opined it was less likely than not that the Veteran's current knee condition was related to service. While there were some mentions of knee pain in service, there is no indication these episodes were of a particularly serious nature and the examiner felt the development of degenerative arthritis was a normal aging phenomenon for the Veteran. The Veteran was again examined by the VA in March 2012. The examiner reiterated his conclusion that it was less likely as not that the Veteran's degenerative arthritis of the knees was related to or caused by service. He stated there were episodes in which mention was made of the knees in service, but such entries did not appear to be significant injuries or of an ongoing degree. The Veteran was most recently examined by the VA for his knees in January 2013. The examiner stated he reviewed the claims folder. He summarized some of the findings in the service treatment records pertaining to treatment for the knees. The Veteran reported he did multiple road marches with a 30-pound pack on active duty, and stated his knees hurt while he was in service. The diagnosis was degenerative arthritis of the knees. The examiner concluded some of the Veteran's degenerative arthritis knee changes came from his years in service. The Board acknowledges there are conflicting medical opinions in the record regarding the etiology of the Veteran's bilateral knee disability. It is not disputed that the Veteran was treated during service for complaints involving each knee. He subsequently developed arthritis of the knees. As noted above, following the most recent VA examination, the examiner concluded, based on a review of the claims folder, that the Veteran's arthritis of the knees was related to service. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for degenerative arthritis of each knee. ORDER Service connection for arthritis of each knee is granted. REMAND The Veteran also asserts service connection is warranted for a low back disability, to include on a secondary basis. He claims he hurt his back lifting heavy equipment in service. He insists he was treated for complaints involving the low back during service. The service treatment records disclose the Veteran was seen for complaints of back pain in March 1985. It was noted he had gone bowling the previous night, but no injury occurred. An examination revealed limitation of motion and tenderness of the lumbosacral spine. The assessment was mechanical low back pain. The spine was evaluated as normal on the separation examination in June 1986. In a statement dated February 2009, a chiropractor noted he had examined the Veteran that month for pain in the lumbar area. He stated the Veteran had degenerative disc disease of the lumbar spine due to biomechanics of the body from the degeneration of his knees. He noted the Veteran claimed he had trauma to his knees from jumping out of airplanes in service. The chiropractor concluded that the Veteran's back pain was a direct result of his changed body mechanics due to his knee problems. In its January 2013 remand, the Board directed that a VA examination be performed, and that the examiner comment on whether the Veteran had a low back disability that was related to service or to his bilateral knee disorder. The Board notes that while an examination was conducted, the examiner did not include the requested opinion. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims folder to the examiner who conducted the January 2013 VA examination of the spine. If that examiner is unavailable or determines that the opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's low back disability is related to service, or if his service-connected bilateral knee disability caused or aggravated (permanently worsened the underlying disorder beyond its normal course) the Veteran's low back disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of back disability (i.e., a baseline) before the onset of the aggravation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs