Citation Nr: 1317273 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-34 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a disability manifested by left sided neck and chest pain. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1972 to September 1979, from September 1979 to September 1985, and from April 2006 to September 2007, with additional National Guard service. These matters come to the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A March 2013 Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; no such evidence was received. 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 issues of service connection for a disability manifested by left sided neck and chest pain and a compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT It is reasonably shown that the Veteran incurred a left knee disability during active duty service that increased in severity beyond normal progression with further service. CONCLUSION OF LAW Left knee disability was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the benefits sought are being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in severity of the disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disability. A lack of aggravation can be shown by establishing either that there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he injured his left knee during annual training exercises in September 2005. Notably, he submitted service personnel records verifying that he was performing Annual Training with the 1114th Transportation Company during the period of September 12 to 25, 2005, during which period the company was conducting HETT Training in preparation for deployment to Iraq in April 2006. The Veteran was verified as present for all training with the company, and he was deployed to Iraq under Title 10 (indicating Federalized service) in April 2006. He contends that the left knee symptoms worsened during this period of active duty from 2006 to 2007, resulting in constant left knee pain that continues to the present time. The Veteran's service treatment records (STRs) reflect treatment for left knee symptoms. In July 2006, he reported the onset of left knee pain in September 2005, and he reported that his symptoms increased when he was activated to Fort Bliss, resulting in constant left knee pain that increased with marching, prolonged walking, and wearing of a flak vest. July 2006 X-rays showed mild medial and patellofemoral degenerative joint disease, and osteoarthritis of the left knee was diagnosed. In July 2007, he reported increasing bilateral knee pain before and during deployment. July 2007 X-rays of the left knee showed degenerative changes, and an MRI of the left knee showed moderate tricompartmental degenerative change with an intra-articular loose body within the posteromedial aspect of the joint, which it was noted could account for the Veteran's symptoms; the MRI also showed mildly increased signal and thickening within the medial collateral ligament consistent with prior injury. The diagnoses included loose body in the knee and osteoarthritis, localized knee. In August 2007, he was examined for bilateral knee and ankle pain; the opinion was that the injury was incurred in the line of duty and was likely to result in a claim against the government for future medical care. On October 2007 VA treatment, the Veteran reported that he had knee pain which had started while he was in service. He reported that he injured the left knee while running in September 2005. On January 2008 VA examination, the Veteran reported that, in September 2005 when he was initially on weekend duty for training, he noticed that he would pull muscles around his left knee when he was running. He reported that he had X-rays of the knee prior to deploying to Iraq which showed a bone chip. The examiner noted the July 2007 MRI findings. The examiner also noted that the Veteran went to Iraq with a permanent profile due to the knee. He reported using a knee sleeve and a variety of Ace wrap type knee braces, none of which helped. Following a physical examination, the diagnoses included degenerative arthritis of the left knee with a loose body medially. In an April 2008 buddy statement, service member P.E. noted that he was stationed with the Veteran from September 2005 to August 2007 and they were together daily. He stated that he was stained with the Veteran when he strained his left knee during a training exercise in September 2005, after which the Veteran continued to train with the company. He stated that he witnessed the Veteran's struggles with the movement of his knees when they wore vests with armor plating adding 25 to 65 additional pounds. He stated that the Veteran had problems with his left knee when they were deployed to Iraq from July 2006 to July 2007. In a June 2008 statement, the Veteran stated that he needed to wear a left knee brace to stop him from falling and to hold the knee together for support; he stated that he consistently fell without the knee brace, and he needed his wife to be around to help him if he fell at any given time. X-rays showed degenerative changes bilaterally, slightly worse on the left than the right. A July 2008 MRI of the left knee showed tricompartmental osteoarthritis with cartilage thinning and fissuring, a 3 millimeter intra-articular body with synovitis in the lateral recess, a small free edge tear in the posterior horn lateral meniscus, and probable distal femoral enchondroma. On June 2010 VA treatment, the results of an October 2009 MRI of the left knee were noted to include tricompartmental osteoarthritis with cartilage thinning and irregularity which was mild to moderate in the lateral compartment but moderate to severe in the medial to patellofemoral compartments. He was to have surgery in the near future but preferred to wait until he was granted service connection for the knee before undergoing surgery. He reported that he had fallen a couple of times in the past due to the left leg giving out. He continued to use NSAIDs, an unloader brace, and ice after exertion. At the March 2013 Travel Board hearing, the Veteran testified that he was at Camp Roberts in November 2005 as he was being called up to be a head driver for the deployment mobilization to Iraq. He testified that he was there performing physical training exercises when he pulled the ligaments in the left side of his knee. He testified that he was moved out in April 2006, arrived in Texas in May 2006, and deployed to Iraq in July 2006; he testified that before he went, he had X-rays and MRIs performed on his knee at Fort Bliss, and it was determined that he had arthritis. He testified that he went to sick call and was given Celebrex for the arthritis pain; upon return from Iraq, X-rays and MRIs of the left knee performed at Fort Bliss showed a bone chip and surgery was suggested at that time. He testified that it could not be done at that time as he was transferring to Massachusetts. He testified that he was wearing a knee brace, as he still had bone chips in the knee and now had a Baker's cyst as well; steroid injections had caused a negative reaction. It is not in dispute that the Veteran sustained a left knee injury during Annual Training in September 2005, in preparation for deployment under Title 10 Federalized service in April 2006. It is also not in dispute that the left knee disability is shown to have worsened during the Veteran's 2006 to 2007 tour of duty, as indicated by the July 2006 X-rays and the July 2007 X-ray and MRI results (showing mild arthritis of the knee, and moderate arthritis with a loose body within the knee joint, respectively). Indeed, the opinion on August 2007 examination for knee pain was that the injury was incurred in the line of duty. Accordingly, it is shown that such left knee disability was incurred during service, and was further aggravated during service, and that service connection for the left knee disability is warranted. ORDER Service connection for left knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the matters on appeal. See 38 C.F.R. § 3.159 (2012). The Veteran alleges that he has a current disability manifested by left sided neck and chest pain that was caused by wearing a heavy (65 pound) armor vest with additional weight while serving in Iraq. His service treatment records (STRs) do reflect complaints of left sided chest pain, as he suffered a minor sprain of the pectoralis muscle in February 2007; the assessment was costochondritis (Tietze's syndrome). At the March 2013 Travel Board hearing, he testified that the vest weighed more on his left side and pushed down on his neck, causing his neck to become stiff and hard to move. Postservice treatment records include findings of foraminal stenoses on the left at C5, C6, and C7, and mild left C5-6-7 radiculopathy. The Veteran has stated (and is competent to observe) that he has continued to have symptoms of the left side of his neck and chest since separation from service. Given the medical evidence of current neck/chest disability, and the lay statements and testimony from the Veteran that he has experienced continuous symptoms since service, the "low threshold" standard outlined in McLendon is met. The question presented (whether based on the entire record the Veteran has a current disability or disabilities manifested by left sided neck and chest pain related to any injury in service) is a medical question, and a VA nexus examination is necessary to determine the nature of, and likely etiology for, any such current disability. Regarding bilateral hearing loss, at the March 2013 Board hearing the Veteran testified that his wife reported his hearing loss as worsened in the previous 4 to 5 years, since the most recent (November 2008) VA audiological examination. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran has alleged that the current rating does not reflect his current state of hearing impairment. The March 2013 testimony arguably advances an implicit claim that the bilateral hearing loss disability is more severe than shown on the 2008 VA examination. To fully assist the Veteran, a more current examination is appropriate. Finally, a review of the claims file found that the most recent VA treatment records in evidence (including in Virtual VA, VA's online claims database) are from January 2011, indicating that there may be additional VA treatment records not yet associated with the claims file. Such records of treatment would be pertinent and perhaps critical evidence regarding the claims on appeal; VA treatment records are constructively in evidence and must be secured. 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. The RO should secure for the record copies of the complete clinical records of any (and all) pertinent VA treatment records since January 2011. The RO should review the records received, and arrange for any further development suggested by the information therein. 2. The RO should then arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology any disability manifested by left sided neck and chest pain. The Veteran's claims files (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) the Veteran's current disabilities of the neck and chest. (b) As to each disability entity diagnosed, please indicate what is the most likely etiology for such disability? Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred in, or aggravated by, the Veteran's active duty service? The opinion must specifically include comment as to whether the disability picture presented (by each disability entity diagnosed) is consistent with the Veteran's accounts that he has had such disability ever since his discharge from active service (in 2007), as well as the findings noted in service. The examiner must explain the rationale for all opinions. 3. The RO should also arrange for an evaluation of the Veteran (to include audiometric studies) by an otologist or audiologist to ascertain the current severity of his bilateral hearing loss. The Veteran's claims file (including this remand) must be furnished to the examiner for review in connection with the examination. Examination findings should be reported to allow for application of all potential VA rating criteria for bilateral hearing loss. 4. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claims. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs