Citation Nr: 1319406 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-20 754 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left knee disability, including as secondary to service-connected traumatic arthritis of the right knee. 2. Entitlement to an increased (compensable) evaluation for status post fracture of the right little finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1980 to January 1984. By rating action in October 2001, the RO, in part, denied service connection for a left knee disability secondary to the service-connected right knee disability. The Veteran was notified of this decision and did not appeal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the RO which, in part, declined to reopen the claim of secondary service connection for a left knee disability, and denied an increased rating for the right little finger disability. A hearing at the RO before the undersigned was held in September 2011. In February 2012, the Board reopened the claim of secondary service connection for a left knee disability and remanded that issue for additional development. The Board also denied a compensable evaluation for the right little finger disability, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a February 2013 joint motion for remand (JMR), the Court vacated the Board's decision with respect to the right little finger disability, and remanded the matter for compliance with the terms of the JMR. The issue of an increased rating for the right little finger disability 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 is not shown to have a left knee disability that had its onset in service, and there is no competent medical evidence that any current left knee disability is causally or etiologically related to, or aggravated by the service-connected right knee disability. CONCLUSION OF LAW The Veteran does not have a left knee disability due to disease or injury which was incurred in or aggravated by military service, nor is any current left knee disability due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.655 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA medical records identified by the Veteran have been obtained and associated with the claims file. The Veteran testified at a hearing before the undersigned at the RO in September 2011, and on remand, was scheduled for a VA examination in February 2013, but failed to report and has not contacted VA to request to be rescheduled for another examination. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. As noted above, the Veteran testified a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal, indicated the evidence necessary to substantiate the claims, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, the case has been subject to a prior Board remand. The RO has associated all available treatment records with the claims folder and attempted to obtain a medical opinion concerning the etiology of the Veteran's left knee disability, including whether any current disability was causally related to the service-connected right knee disability. As indicated above, however, the Veteran failed to report for the examination and has not contacted VA to request to be rescheduled. Under the circumstances, the Board finds that the agency of AMC has substantially complied with the February 2012 remand orders and that no further action is necessary in this regard. See 38 C.F.R. § 3.655 (2012); see also, D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue addressed in this decision is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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) 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. Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) 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. 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). Arthritis is recognized as chronic under 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Left Knee Disability The Veteran contends that his current left knee disability is related to service or, in the alternative, is secondary to his service-connected right knee disability, and believes that service connection should be established for the left knee. The STRs showed that the Veteran was seen for left knee pain on a couple of occasions in April and May 1980. Other than some tenderness and a mild sprain of the lateral collateral ligament in April 1980, the objective findings were within normal limits and showed no evidence of swelling, edema, abnormal gait or limitation of motion. X-ray studies of the left knee in April 1980 were normal. The Veteran was also seen for left leg/knee pain on a couple of occasions in August and September 1980, secondary to overuse due to his right knee disability. However, other than some vague lateral collateral ligament tenderness, no pertinent abnormalities were noted. When seen in February 1981, there was some trace effusion, but no tenderness or crepitus, and the Veteran had full range of motion in the left knee. When examined by VA in August 2001, there were numerous scars over the anterior aspect of the left knee from childhood trauma and trace retropetellar crepitation, but no swelling, effusion, patellar instability or tenderness. Flexion was to 140 degrees and extension was limited by 10 degrees. Anterior and posterior drawer sign and Lachman test were negative. The impression included mild osteoarthritis of the left knee. The examiner opined that the Veteran's osteoarthritis in the left knee was more likely the result of age and usage than secondary to his right knee disability. Private medical records showed that the Veteran was treated for bilateral knee pain on several occasions from 1992 to 2003. A treatment note dated in January 2003, showed arthritis in both knees probably secondary to repetitive stress. The diagnoses on a private report in January 2008, included varus gonarthrosis of the left knee. Additional VA records showed the Veteran was seen for various maladies, including bilateral knee pain, on numerous occasions from 2005 to 2010. Other than mild degenerative changes in the left knee, the records did not show or otherwise suggest that the Veteran's left knee disability was related to service or to his service-connected right knee disability. Based on the Veteran's testimony at the hearing in September 2011, to the effect that a private doctor told him that his current left knee disability was most likely caused by his service-connected right knee disability, the Board reopen and remanded the claim for additional development. Thereafter, the Veteran was contacted and requested to provide VA with authorization to obtain the medical reports from the private doctor who advised him that his left knee disability was related to his service-connected right knee disability. However, the Veteran did not respond to the RO's February 2012 letter to provide the requested information. The evidence also showed that the Veteran was scheduled for a VA examination in February 2012, to determine the etiology of his left knee disability, but that he failed to report and did not contact VA to request to reschedule. In this regard, VA regulations provide, in pertinent part, that when a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). In this case, while the Veteran believes that his current left knee disability is related to service or to his service-connected right knee disability, he has not provided any competent evidence to support his assertions. Moreover, the Veteran failed to report for a VA examination in February 2012, which was scheduled specifically to determine the nature and etiology of his left knee disability. The current evidence of record showed that the Veteran was treated for a left collateral ligament sprain shortly after entering service, and for left knee and leg pain on a couple of occasions while recovering from his right knee surgery during his first year of service. However, other than some mild left knee tenderness, there was no objective evidence of any additional findings or pertinent abnormalities in service. In fact, the STRs showed that the Veteran was treated for a right little finger injury suffered in a basketball game in 1983, more two years after his left knee sprain. Thus, the STRs suggest that his left knee sprain had resolved, as evidence by the lack of any further complaints or abnormalities during his nearly three years of remaining service, and the fact that he was able to play basketball, subsequent to his ligament strain. Moreover, the only competent medical evidence of record that addressed the question of secondary service-connection was the August 2001 VA examiner's opinion that his left knee arthritis was due to age and normal use and not due to the service-connected right knee disability. The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his service-connected right knee disability and the current left knee disability. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, as a layperson, in this case the Veteran is not competent to assert a causal link between the right and left knee conditions. As there is no competent evidence of a chronic left knee disability in service, no evidence of arthritis of the left knee within one year of discharge from service, and no competent medical evidence of record suggesting a connection between any current left knee disability and the service-connected right knee disability, the record affords no basis for a favorable disposition of the Veteran's appeal. Accordingly, service connection for a left knee disability, including secondary to the service-connected right knee disability is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a left knee disability, including as secondary to service-connected traumatic arthritis of the right knee. REMAND As a result of the Order of the Court, the Board has been directed to undertake action consistent with the JMR. In the JMR, it was argued that the Board did not adequately explain why the Veteran was not entitled to a compensable evaluation based on his allegations of functional loss of use in the right little finger. The Veteran testified at the hearing in September 2011, that he was a clerk typist and that he could not use his right little finger to type due to pain and stiffness. In the Post-Remand Brief, dated in May 2013, the representative requested that the Board remand the appeal for another VA examination to address the Veteran's specific allegations that he has little or no functional use remaining in the right little finger. A determination of the extent of functional loss is central to proper application of the rating criteria and requires a thorough examination. 38 C.F.R. § 4.40 states, in part, that it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Under the circumstances, the Board finds that the Veteran should be scheduled for another VA examination to determine the current severity of his right little finger. The Board is required to discuss its reasons and bases for assigning a particular disability rating with reference to the criteria contained in the relevant diagnostic codes, and is not permitted to discuss factors outside the scope of the rating criteria, nor is it permitted to speculate on the presence or absence of the criteria on the basis of incomplete information. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his right little finger since October 2010. After securing the necessary release, the AMC should attempt to obtain copies of all medical records from the identified treatment sources, including any VA treatment records since October 2010, and associate them with the claims folder. 2. The Veteran should be afforded a VA examination to determine the extent and severity of his right little finger disability. The claims folder should be made available to the examiner for review and a notation to the effect that this record review took place should be included in the report. The pertinent clinical findings and reasons that form the basis of any opinion should be clearly set forth in the report. The examiner should provide a response to each of the following: (a) Note any limitation of motion in the right little finger. (b) Indicate whether the right little finger exhibits weakened movement, excess fatigability, or incoordination. These determinations must be expressed in terms of the degree of additional loss of range of motion. (c) Express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right little finger is used repeatedly over a period of time. These determinations must also be portrayed in terms of the degree of additional range of motion loss. (d) Indicate whether any functional limitation due to pain, weakened movement, excess fatigability, or incoordination of the right little finger, if identified, would be commensurate with amputation at the proximal interphalangeal joint or proximal thereto, and with or without metacarpal resection. (e) The examiner should also indicate whether the Veteran experiences any neurological impairment due to his right little finger disability. If such neurological impairment exists, the examiner should identify the specific nerve(s) involved and describe all manifestations and the severity of such damage. 3. After the requested development has been completed, the AMC should readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs