Citation Nr: 1318800 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-29 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran & M.L. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to November 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). The issue of entitlement to TDIU 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 Resolving all doubt in favor of the Veteran, the Veteran's left knee disorder is causally or etiologically due to service. CONCLUSION OF LAW Service connection for a left knee disorder is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.309 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for a Left Knee Disorder The Veteran seeks entitlement to service connection for a left knee disorder. He asserts he injured his left knee during service while playing football, and that he has continued to experience left knee problems since discharge from service. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), 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. 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because arthritis is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in the Veteran's claim of service connection for a left knee disorder. 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether the Veteran's left knee disorder is related to service, the Board will first address whether the presumption of soundness attaches in this instance and, if so, whether it has been rebutted by clear and unmistakable evidence. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into 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; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. Service treatment records were reviewed. The Veteran's entrance examination conducted in January 1967 did not note any lower extremity abnormalities. In February 1967, it was noted that the Veteran complained of trouble with his left knee. Approximately three weeks later, the Veteran complained again of left knee pain, and it was noted that the pain was due to an old football injury. He had a tender lateral collateral ligament. Several days later, the Veteran returned, stating his knee had not improved. He was seen in the Orthopedic Clinic, where it was noted that he injured his left knee playing football in 1961. It was noted he currently had swelling with no locking. It was also noted that the Veteran was doing construction work prior to service and that he did not mention his knee when he entered service. He was diagnosed with chondromalacia patella. In June 1967, it was noted that the Veteran first injured his left knee in 1963 while playing football in high school. The record noted that since then, the Veteran has had knee pain on the lateral side of the left knee, especially when running. He was diagnosed with quad insufficiency. In September 1967, it was reported that the Veteran sustained a trauma to the left knee cartilage at the age of 20. The Veteran was ultimately medically discharged from service due to a heart disorder. The Veteran asserts that he never informed the service physician that he injured his knee during high school. As noted in the May 2012 Board decision, because no disorder of the left knee was noted on the report of the Veteran's service entrance examination, it is presumed that the knee was in sound condition when he entered service. The disputed evidence of a pre-service left knee injury raises a possibility of a pre-service left knee disorder, but that evidence is not clear and unmistakable as to the existence of a left knee disorder at the time of entrance into service. The Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners). Thus, the evidence does not rebut the presumption of sound condition of the Veteran's left knee at entrance into service. As such, based on the totality of the evidence, the Board finds that the evidence does not rebut the presumption of soundness. There is no clear and unmistakable evidence that the Veteran's disorder pre-existed his entry into service. Not having found clear and unmistakable evidence of a pre-existing disability, the claim becomes one of direct service connection. As an initial matter, the Veteran was diagnosed degenerative arthritis of the left knee during a June 2012 VA examination. The Board therefore finds that the evidence demonstrates a present disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement for service connection, that a disease or injury was incurred or aggravated during service, the Board acknowledges the service treatment records discussed previously indicate the Veteran's left knee was treated during service. Service treatment records indicate the Veteran was diagnosed with several left knee disorders during service, including chondromalacia patella and quad insufficiency. The Veteran has submitted multiple lay statements from fellow service members, which report that the Veteran injured his left knee playing touch football during service. See October 2006 statements. The Veteran has also submitted statements from friends and family members indicating that he did not injure his left knee during high school. See August 2011, September 2011, October 2011, and January 2012 statements. Post-service treatment records were reviewed. The Veteran has received treatment for his left knee with private physicians and the VA for many years. He has undergone multiple surgeries, including two total knee replacements. A Physician's Statement from September 1978 indicated the Veteran had moderately advanced osteoarthritis of the left knee. Operative Reports submitted indicated the Veteran underwent one of his surgeries as early as 1978. Since then, the Veteran has received continual left knee treatment, including a total knee replacement that was complicated by infection and a subsequent fusion of the left knee. In August 2009, the Veteran's private physician submitted a statement. The physician indicated that the Veteran was currently being treated for residuals of effusion to his left knee. The physician stated that the Veteran's records were reviewed, and indicated that the Veteran sustained an injury to the left knee while playing football in 1967 while on active duty. The physician noted that the Veteran subsequently separated from service due to a cardiac condition. It was noted that he was subsequently followed in the VA and diagnosed with ligament cartilage damage, which ultimately progressed to arthritis, requiring a total knee replacement of the left knee. The physician stated that due to complications from the knee replacement, he had removal of the implant and a knee fusion in 1985. The physician then opined that based on the Veteran's history, his current disorder of the left knee is causally related to the active duty football injury he sustained in 1967. The Veteran was afforded a VA examination in June 2012. It was noted that he had two total knee replacements and a fusion of the left knee. The examiner noted that the Veteran hurt his left knee in 1967 while in service but was discharged due to his heart. It was noted that he has had more than 20 surgeries on the knee. After examination, the examiner opined that the Veteran's current left knee disorder is less likely than not incurred in or caused by his time in service. The examiner stated that the Veteran had a knee injury in 1967 and was seen twice in February for his knee, but continued in service until September or October, when he was discharged due to his heart condition. The examiner stated there was no mention on discharge about a continued knee problem. The examiner also stated that there was no mention of a left knee problem in multiple VA examinations post-service, until 1980, after having surgery three times. The examiner noted that it seemed unlikely that the Veteran would have been hired initially in housekeeping if there had been a continued knee problem from the military and then work 10 years in that position, although it the examiner acknowledged that the Veteran did have knee surgery while in that civil service job. It is important to note that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran asserts that he injured his left knee during service and continues to experience left knee pain. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges the June 2012 negative nexus opinion concerning the etiology of the Veteran's left knee disorder; however, the Board notes that in rendering this opinion, the VA examiner failed to acknowledge the Veteran's accounts of continued symptomatology since service. Additionally, the examiner appears to not have noted the June 1967 and September 1967 subsequent complaints and treatment of the Veteran's left knee in service. Furthermore, the examiner offers no comments or explanation regarding the August 2009 positive nexus opinion provided by the Veteran's private physician. Accordingly, because the June 2012 opinion does not contemplate the complete record of treatment during service of the left knee and the Veteran's lay reports of left knee pain since service, the Board finds this opinion to be of little probative value. See Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). The Board notes that the August 2009 private medical opinion does not indicate what records were reviewed. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Given the competent and credible statements of record asserting constant left knee pain since service, the current diagnosis of a left knee disorder, and evidence of a left knee injury during service, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection for a left knee disorder. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, the Veteran's service-connection claim is granted. ORDER Service connection for a left knee disorder is granted. (CONTINUED ON NEXT PAGE) REMAND The Veteran seeks entitlement to TDIU. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of pertinent records and in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA's duty to assist also includes a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds the duty to assist has not been met and further development is necessary before the Veteran's claim can be decided. The Veteran should be provided with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. Furthermore, as a result of this decision, the Veteran has been granted service connection for his left knee disorder. The Veteran is also service connected for rheumatic heart disease and major depressive disorder. To date, the Veteran has not been afforded a VA examination to determine if his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. A remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion. Then, if necessary, the RO should submit the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. 2. Obtain and associate with the claims file all updated treatment records. 3. After the above development has been completed, schedule the Veteran for a VA examination to evaluate the impact his service-connected disabilities have on his employability. The examiner must review the claims file and should note that review in the report. The examiner must take a history of the Veteran's educational and employment background. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent) that the Veteran's service-connected disabilities (left knee disability, rheumatic heart disease and major depressive disorder), either singularly or jointly and without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The examiner should consider such factors as the Veteran's education level, special training, and work experience. In offering any opinion, the examiner should consider all the evidence of record, to include the lay statements submitted by or behalf of the Veteran. The rationale for any opinion offered should be provided. 4. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. 5. Then, if deemed necessary, submit the Veteran's claim of TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) (2012). 6. After all of the above actions have been completed, readjudicate the claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs