Citation Nr: 1316730 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-40 640 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected gunshot wound to the left buttocks and hip. 2. Entitlement to a rating in excess of 30 percent for gunshot wound to the left buttocks and hip. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. This matter comes before the Board of Veterans' Appeal (hereinafter Board) on appeal from an April 2009 rating decision, by the New York, New York, Regional Office (RO), which denied the Veteran's claims of entitlement to a rating in excess of 30 percent for gunshot wound to the left buttocks and hip, Muscle Groups XVI and XVII, and service connection for a left knee disorder, to include as due to the service-connected gunshot wounds. He perfected a timely appeal to that decision. In August 2012, the Veteran appeared and offered testimony at a hearing before the undersigned Acting Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. 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 a rating in excess of 30 percent for gunshot wound to the left buttocks and hip, Muscle Groups XVI and XVII, 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 does not have a left knee disorder that is attributable to military service or to the service-connected gunshot wound to the left buttocks and hip. CONCLUSION OF LAW The Veteran does not have a left knee disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in January 2009 from the RO to the Veteran, which was issued prior to the RO decision in April 2009. That letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Board notes that the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is, therefore, the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the service connection issue. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from January 1951 to January 1954. The service treatment records (STRs) are completely silent with respect to any complaints or clinical findings of a left knee disorder. By a rating action of March 1954, the RO granted service connection for gunshot wound, buttocks and hip, left Muscle Group XVI, moderately severe and Muscle Group XVII; a 30 percent rating was assigned, effective January 10, 1954. In a statement in support of claim (VA Form 21-4138) dated in October 2008, the Veteran requested service connection for a left knee disorder, claimed as secondary to his service-connected gunshot wound to the left buttocks and hip. In conjunction with his claim, the Veteran was afforded a VA joints examination in February 2009; at that time, he complained of intermittent left knee pains recently. The Veteran also complained of intermittent stiffness in the left knee. The knees had a range of motion from 0 degrees to 130 degrees; the same range was noted with repetitive movements and it was painless. X-ray study of the left knee was within normal limits. The pertinent diagnosis was negative examination of the left knee, and no pathology found. Subsequently received were VA progress notes dated from January 2009 through March 2011. These records do not reflect any complaints or findings of a left knee disorder. At his personal hearing in August 2012, the Veteran indicated that he currently has pain in his left knee; he described the pain as a stiffness-type pain. The Veteran indicated that, while he doesn't know exactly what is causing the left knee pain, but everything that happened with the gunshot wounds happened to the left side. III. Legal Analysis. Service connection may be granted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish service connection for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board recognizes that the Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that he has a left knee disorder that is the result of his active military service. Alternatively, the Veteran contends that he has a left knee disorder that was caused or aggravated by his service-connected left hip disorder. Thus, he believes that service connection is warranted on either a direct or secondary basis. The threshold matter that must be addressed here (as with any claim seeking service connection, whether direct or secondary) is whether the Veteran has the disability for which service connection is sought. After review of the pertinent evidence of record, the Board finds that the competent evidence of record does not establish a current diagnosis of a left knee disorder. Significantly, the STRs do not include any mention of, complaints of, treatment for, or diagnosis of a left knee disorder. In addition, the record is devoid of any competent evidence indicating or suggesting that the Veteran has or has had a diagnosed left knee disorder. In fact, following the February 2009 VA examination, the examiner stated that the left knee examination was negative, and no pathology was found. Moreover, the Veteran has not submitted any competent evidence supporting the claim that he has a left knee disorder. Without competent medical evidence confirming that the Veteran has a current diagnosis of a left knee disorder, or has manifested such condition since service, and linking this diagnosis to his military service, he has no valid claim. See, e.g., Brammer, Degmetich, supra; Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). See also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish that he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service." Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).) Thus, service connection for a left knee disorder must be denied. The only evidence in support of the Veteran's claim is his own statement. The Veteran can attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a layman, the Veteran is not generally not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. In this case in particular, given the absence of any observable knee pathology, the Board finds that attempting to ascertain an underlying pathology for the claimed knee complaints is clearly one requiring medical expertise. Accordingly, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. The Board notes in any event that the probative value of any statement by the Veteran as to the presence of a current disorder is outweighed by that of the VA examiner, who found no disability, and who clearly has more training, education and experience in identifying knee disorders than the Veteran. Accordingly, the Board finds that the claim for service connection for a left knee disorder, to include as secondary to the left buttocks and hip disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left knee disability, to include as secondary to service-connected gunshot wound to the left buttocks and hip, Muscle Groups XVI/XVII, is denied. REMAND The Veteran essentially contends that his gunshot wound to the left buttocks and left hip is more disabling than reflected by the currently assigned rating. The Veteran maintains that his disorder has definitely gotten worse since it was last examined; he maintains that he has the necessary injuries to meet the criteria for assignment of a 40 percent disability rating. The Veteran further maintains that the February 20009 VA examination report clearly shows that he experiences increased pain, weakness and lack of endurance in the left buttocks/hip. However, the Veteran argues that the February 2009 VA examination is inadequate because the examiner did not have access to his claims folder. In this regard, the Board notes that once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (West 2002); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. In a statement in support of claim (VA Form 21-4138) dated in October 2008, the Veteran requested an increased rating for his service-connected gunshot wound to the left buttocks and hip. In his notice of disagreement (NOD), dated in December 2009, the Veteran indicated that his condition had worsened over the last several years. The Veteran was afforded VA examination in February 2009. The examination report noted that the claims folder was not available for review. On the occasion of a VA joints examination, the Veteran reported intermittent pain in the left hip. There was no swelling, giving way or instability, locking, weakness, heat and redness, fatigability, lack of endurance or other symptoms. The Veteran noted that pain is precipitated by prolonged ambulation, but is alleviated somewhat by over-the-counter analgesics. The Veteran indicated that he was able to ambulate without assistance device up to two to three blocks until he needs rest. The Veteran reportedly had painful motion, decreased left hip muscle power, and guarding with left hip range of motion. The Veteran was able to ambulate without assistive device; he had functional gait, but with some difficulty getting up from a chair. The diagnosis was old gunshot wound to the left pelvis and left hip with multiple foreign bodies remaining in the soft tissues; and painful left hip range of motion, secondary to the left pelvis and left hip conditions. The examiner noted that joint function impairment was caused by pain, weakness, and lack of endurance. During the examination for evaluation of the muscles, examination of the left buttock revealed two two-inch depressed scars; the left hip/pelvis had multiple healed scars, including two three-inch scars and one five-inch scar. There was some left gluteus maximus atrophy under the left buttock scars. The examiner reported decreased left hip muscle power to 4+/5. It was noted that motion was limited by pain, easy fatigability and weakness. The diagnosis was old gunshot wound to the left pelvis and left hip with multiple foreign bodies remaining in the soft tissues. The scars examination reported pain at the left buttocks two 2" scars, and underlying tissue adherence at the left buttock scars. The examiner did report some depression at the left buttocks scars, but there was no underlying soft tissue damage. There was no inflammation, edema, or keloid formation. The diagnosis was old healed post-gunshot scars, left hip and left pelvis. At his personal hearing in August 2012, the Veteran's service representative again argued that the February 2009 VA examination is inadequate since the examiner did not have access to the claims folder. The representative argues that the rating decision erroneously stated that the Veteran's condition was not shown to have increased in severity. In this regard, the representative noted that the VA examiner reported increased pain with repetitive movement of the left hip, weakness and lack of endurance. It was noted that the VA examiner also reported decreased left hip muscle power and motion was limited by pain, easy fatigability and weakness. Consequently, the Veteran maintained that he was entitled to an extraschedular rating for his gunshot wound to the left hip under the provisions of DeLuca v. Brown, 8 Vet. App. 202, 204 (1995). The service representative noted that the VA examiner found that there was tendon damage, and there was tissue loss under the left buttock scar. The Veteran further maintained that the VA examiner found that the scars on the left hip are painful and had tissue adherence. The Veteran argued that since there are two muscle groups affected by the gunshot wounds, they should be rated separately. VA progress notes dated from October 2008 to March 2011 clearly show that the Veteran continues to receive clinical attention and treatment for left hip pain. During a clinical visit in January 2009, the Veteran complained of pain in the lateral aspect of the left hip. The Veteran indicated that the pain has been present for almost 30 years; he stated that the pain is present in the morning if he sleeps on the left side. At times, he has to walk very slowly to keep from accentuating the pain. The impression was multiple small missile fragments in the pelvic region. When seen in September 2009, the Veteran reported having stiffness in the hips in the morning; he noted that they get more flexible once he moves around. It was noted that x-ray study of the left hip in October 2008 revealed no evidence of an acute fracture or dislocation; left joint was grossly maintained; and multiple radiopaque densities of various sizes were noted in the left lower abdomen and pelvis, in addition to overlying the left proximal femur and hip consistent with foreign body/shrapnel. As noted above, the Veteran's claims folder was not made available for review by the VA examiner in this case. Failure to review the claims folder does not, by itself, automatically render the opinion inadequate. See Nieves-Rodriguez, 22 Vet. . 295, 301 (2008); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change objective and dispositive findings made during medical examination). Here, however, based on the nature of the Veteran's service-connected gunshot wounds and reported symptoms, the Board finds that the VA examiner's failure to review the medical evidence of record in this case renders his February 2009 inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'" (quoting Ardison v. Brown, 6 Vet. App. 405, 407(1994))). Moreover, the Court has held that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In light of the Veteran's contentions regarding his worsened left buttock and hip disability and the inadequate February 2009 muscles examination, a new examination is required. The Veteran must be afforded an examination which includes a review of the claims file, and contains sufficient findings to evaluate the claim under the relevant diagnostic criteria. Then, the RO must readjudicate the claim, to include the question of whether a separate rating is warranted for any scars. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: (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. The AOJ should obtain the names and addresses of all medical care providers, including VA and non-VA providers, who have treated the Veteran for his gunshot wound to the left buttocks and left hip since February 2009. After securing any necessary release(s), obtain those records not already on file. Any additional evidence pertinent to the Veteran's claim received by the AOJ should be associated with the claims folder. All attempts to procure records should be documented in the file. If VA cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The AOJ should arrange for the Veteran to be evaluated by the appropriate specialist(s) to determine the nature, extent, and severity of the service-connected gunshot wound of the left buttocks/hip. The claims folder, and a copy of this remand, must be made available to the examiner for review as part of the examination process. All necessary tests and studies deemed necessary should be performed. The examiner(s) should record a complete history, all pertinent medical complaints, symptoms, clinical findings, and comment on the functional limitation, if any, caused by the service-connected disability. Recognizing that Muscle Groups XVI and XVII have been documented as having been involved, the examiner(s) should specify the degree of injury to those muscle groups and what functional abilities are affected. In addition, the examiner(s) should indicate if any other Muscle Groups are involved, and if so the extent of injury and any functional impairment. Further, the examiner(s) should identify the etiology of any neurological manifestations, as well as the degree of injury involved and any functional impairment that results. The examiner(s) should comment as to whether the disability associated with any of the affected muscle groups would be considered moderate, moderately severe, or severe. In this regard, he/she should comment concerning the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. The examiner should comment on whether the scars, in particular, are painful (tender), deep, superficial, linear or nonlinear, and/or unstable. The examiner should describe any functional impairment caused by the scars. A complete rationale for any opinion expressed must be provided. 3. The AOJ should ensure that all requested actions have been accomplished. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. When the above development has been properly completed, the issue should be readjudicated by the RO. The RO should specifically determine whether separate ratings are warranted for any scarring in accordance with Esteban v. Brown, 6 Vet. App. 259 (1994). To the extent that the determinations remain adverse to the Veteran, both he and his representative should be issued a supplemental statement of the case (SSOC), which includes all relevant laws and regulations, including the revised regulations regarding evaluating scars, and afforded a reasonable opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs