Citation Nr: 1319177 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-42 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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 Veteran appellant had active military service in the United States Army from January 1944 to January 1946. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that, in part, denied reopening of the appellant's claims of entitlement to service connection for bilateral knee and back disorders. In a September 2012 decision, the Board reopened the knee and back claims and remanded those claims for additional development. The case has now been returned to the Board for appellate review. A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the September 201 Board remand, the appellant was scheduled for a VA a medical examination in October 2012, and a follow-up medical opinion was obtained in March 2013. Therefore, substantial compliance has been achieved. In cases where a veteran's service medical treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist a veteran in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401(1991). Here, no documents other than the report from the Veteran's service separation examination were found by the RO. In addition to the paper claims file, there is a Virtual VA paperless claims file for the Veteran. The documents in that file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has degenerative arthritis of the right knee which is attributable to his service-connected residuals of cold weather injury to the right and left lower extremities, including peripheral artery disease, peripheral neuropathy, hallux valgus and osteoarthritis of the distal toes. 2. It is at least as likely as not that the Veteran has degenerative arthritis of the left knee which is attributable to his service-connected residuals of cold weather injury to the right and left lower extremities, including peripheral artery disease, peripheral neuropathy, hallux valgus and osteoarthritis of the distal toes. 3. It is at least as likely as not that the Veteran has degenerative arthritis and degenerative disc disease of the thoracolumbar spine which is attributable to his service-connected residuals of cold weather injury to the right and left lower extremities, including peripheral artery disease, peripheral neuropathy, hallux valgus and osteoarthritis. CONCLUSIONS OF LAW 1. Degenerative arthritis of the right knee was incurred in or aggravated by service or by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Degenerative arthritis of the left knee was incurred in or aggravated by service or by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. Degenerative arthritis and degenerative disc disease of the thoracolumbar spine were incurred in or aggravated by service or by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.326(a) (2012). Given the fully favorable decision on the matter of service connection for right and left knee degenerative arthritis and thoracolumbar degenerative arthritis and disc disease contained herein, the Board finds that any defect in the notice or assistance provided to the Veteran in relation to those issues constitutes harmless error. II. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When 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). Certain chronic disabilities may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Court has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The appellant is service-connected for residuals of cold weather injury to the right and left lower extremities, including peripheral artery disease, peripheral neuropathy, hallux valgus and osteoarthritis of the distal toes, effective from April 2011. (Service connection for these cold weather injury residuals was granted in a rating decision issued in February 2012.) Review of the appellant's service medical records reveals that he underwent a separation examination in January 1946; there were no medical findings of any knee or back disorder. His DD Form 214 indicates that he had completed parachute jumping training. A WD AGO Form 100 indicates that the appellant participated in assault operations where his unit would move-in in gliders or by jumping from troop carriers. The appellant submitted a claim for pension in a VA Form 21-526 in December 1995. He stated that he was suffering from arthritis in both hands and both knees. He did not mention his back. The appellant underwent a VA medical examination in January 1996. He complained of the following: pain and stiffness of his hands; bilateral knee pain; and bilateral hip pain. He was specifically asked about back pain, but he denied any type of back pain or spine problems to his knowledge. The appellant reported that his knee pain had begun in the 1970s. On physical examination, the appellant demonstrated full flexion and extension of each knee. Knee stability was good. There was hypertrophy of the joints bilaterally. Crepitus was noted. No joint effusion was present. The appellant demonstrated full range of motion of his lumbar spine without tenderness. The spine had normal curvature and posture was normal. Radiographic examination revealed that the sacroiliac joints were within normal limits. Medial compartment narrowing was shown in each knee. The posterior aspect of each patella showed small spurring and early spurring was seen in the lateral epicondyle of each femur. The radiologist rendered impressions of degenerative changes of the knees. The examining VA physician rendered diagnoses that included knee symptomatology consistent with chondromalacia. The evidence of record includes written statements from a private medical doctor. The first is dated in February 2003, and indicates that the doctor, a family practitioner, had reviewed the service history of the appellant. He noted that the appellant had served in the airborne infantry from 1943 to 1946, and participated in "numerous" airborne jumps. The doctor stated that numerous airborne jumps and landings can cause distress to the knees and back that can cause problems later in life with those joints. The doctor further stated that the appellant currently had pains in his knees and back and opined that it was more likely than not that his problems with these joints were directly caused from his active service. In his September 2003 letter, this doctor stated that the appellant had some injuries that he did not report when he jumped for fear of being separated from his unit. The doctor opined that, because of the known association between paratrooper jumps and developing disabling arthritis, the appellant's current disabling arthritis was connected to his service. Similar letters were received from this physician in February 2004, and March 2005. The appellant underwent another VA medical examination in February 2004; the examiner reviewed the claims file. The appellant reported that he had participated in approximately fifteen parachute jumps as a paratrooper. He said that the only injury he could recall during these jumps was one to a knee, although he could not remember which knee was involved. He said that he never reported this injury and that it was not treated in service. After service, he farmed and did construction worked for ten years. He continued to farm and was presently working part-time as a farmer. The appellant stated that he had had no problems with arthritic symptoms or his joints until 1975, when he initially had trouble with his knees. Then, more recently, he had had problems in his low back. He denied any symptoms in his thoracic spine and in his cervical spine; he pointed to his middle to lower lumbar area as the location of his back pain. He complained of chronic swelling of the knees. He also said that he would be awakened at night by low back pain. He reported never having any incapacitating episodes of back or joint pain. He described only pain, not incoordination, fatigue or lack of endurance. On physical examination, the appellant exhibited normal gait and posture. The knee joints exhibited mild to moderate hypertrophy, as well as decreased range of motion and pain on motion. There was no knee instability or tenderness to palpation. There was no paravertebral muscle spasm or tenderness. There was no sciatic notch tenderness or neurological deficit in the lower extremities. The appellant exhibited some decreased range of motion of the lumbar spine; ranges of motion were performed without complaints of pain. The examiner rendered clinical impressions of degenerative arthritis and degenerative disc disease lumbar spine with spondylolisthesis L4 on L5 and degenerative arthritis of the knees. The examiner noted the appellant's negative service discharge examination, his long history of heavy labor, his lack of any complaints until 1975, and the lack of confirmation until 1996. Based on that evidence, the examiner opined that it was not likely that the appellant's arthritis of his knees or lumbar spine was related to his occupation as a paratrooper during his military service. In September 2011, the appellant submitted a letter from a private nurse practitioner who was treating him for orthopedic problems. The nurse practitioner stated that the appellant complained of right knee pain which he blamed on jumping out of airplanes. The nurse practitioner further stated that the appellant had severe osteoarthritis of the knee and that early stages of osteoarthritis could have formed early in his career as a paratrooper. In October 2012, the appellant was afforded a VA medical examination. This examination was performed by the same physician who had performed the January 1996 VA medical examination. The record includes a report from the October 2012 examination and an addendum dated in March 2013. The VA examiner reviewed the appellant's claims file. After reviewing the claims file and examining the appellant, the examining physician concluded that it was less likely than not that the appellant's knee or lumbar spine disorders were incurred in service. The physician made this statement based on the fact that no musculoskeletal defect had been found at the time of the January 1946 separation examination and because there was no indication that the appellant had had any knee or back problems within one year of his service separation in January 1946 - in fact, the appellant reported that he did not have any knee problems until 1975, and that his back problems had started in the late 1990s. The physician opined that, based on the negative service separation examination, the appellant's long post-service history of heavy labor and no history of knee or back complaints until at least 30 years after service discharge, it was less likely than not that the appellant's current knee or lumbar spine pathology was incurred in or caused by his active service. However, the examining physician further stated that the appellant's current knee and thoracolumbar spine conditions were more severe than his 1996 baseline of minimal knee disease and no low back pain. The examiner opined that both the right and left knee degenerative arthritis had progressed more rapidly than would be expected on the basis of natural progression since 1996, and that this more rapid progression was most likely due to an abnormality of gait and posture due to the service-connected bilateral foot disabilities (cold injury residuals). The examiner provided a similar opinion as to the rapid progression of the thoracolumbar degenerative arthritis and disc disease. The examiner explained that the abnormality of the posture and gait from the service-connected foot disabilities caused increased stress on the knees and spine which in turn accelerated the progression of the degenerative changes. As previously noted, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease occurred in service. 38 C.F.R. § 3.303(d). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Court has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The medical evidence of record indicates that a VA examining physician has considered the appellant's right and left knee disorders, as well as his thoracolumbar spine disorders, to be caused by, or a result of, his service-connected right and left foot and lower extremity disabilities by way of aggravation. There is no competent, objective evidence to the contrary; and therefore, service connection for the right and left knee disorders and the thoracolumbar spine disorders secondary to service-connected disability is warranted. At the very least, there is an approximate balance of evidence both for and against the claim that the appellant's bilateral knee degenerative arthritis is etiologically related to his right and left lower extremity disabilities. Likewise, there is an approximate balance of evidence both for and against the claim that the appellant's thoracolumbar spine degenerative arthritis and degenerative disc disease are etiologically related to his right and left lower extremity disabilities. As per 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, all reasonable doubt is resolved in favor of the Veteran. Accordingly, service connection for the right and left knees, as well as the thoracolumbar spine, secondary to the right and left lower extremity disabilities by way of aggravation is warranted. ORDER Service connection for degenerative arthritis of the right knee is granted. Service connection for degenerative arthritis of the left knee is granted. Service connection for degenerative arthritis and degenerative disc disease of the thoracolumbar spine is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs