Citation Nr: 1320345 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 08-13 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle and foot disability, to include gout. 2. Entitlement to service connection for bilateral knee disability, to include gout. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied the benefits sought on appeal. The right ankle claim did not initially include the right foot, but the Board has expanded the claim to conform with the evidence of record. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Veteran and his wife testified at a hearing before an RO Decision Review Officer (DRO) in August 2008. A transcript of that hearing is of record. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his paper claims file. The Board has reviewed the contents of the Virtual file, and the documents included therein which are not also in the paper claims file were considered by the Appeals Management Center (AMC), in Washington, DC, while the case was on remand, as noted in the April 2013 Supplemental Statement of the Case (SSOC). Hence, the Board may consider all documents in the Virtual file without the necessity of seeking a waiver from the Veteran or another remand. See 38 C.F.R. § 20.1104 (2012). The Board has remanded this case to the AMC on three occasions: April and December 2010 and, most recently, in February 2013, for additional development or completion of development not accomplished in the 2010 remands. See Stegall v. West, 11 Vet. App. 268 (1998).). The AMC/RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. The issue of entitlement to service connection for a bilateral ankle and foot disability, to include gout, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The AMC completed the additional development directed in the February 2013 Board remand by seeking VA records from the VAMC, Houston, TX, by obtaining VA records from the Central TX System, and by arranging another VA examination of the Veteran. 2. The preponderance of the evidence of record shows the Veteran's bilateral knee disorder, to include arthritis, did not have its clinical onset in active service, nor is it causally related to active service. CONCLUSION OF LAW A bilateral knee disorder, to include arthritis/gout, was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 1131, 1137, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) Duty to Notify As provided for by the 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, prior to issuance of the rating decision on appeal, the Veteran was sent a letters in February and May 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing a claim. The May 2006 letter provided notice as to how VA assigns an appropriate disability rating or effective date, and reiterated VA's duty to assist. The Board finds the letters were time- and content-compliant. Accordingly, the Board finds VA complied with the VCAA notice requirements. Duty to Assist VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All reasonably identified and available VA medical records were obtained. The Veteran testified at the DRO hearing that he received post-service treatment from two private physicians under the auspices of his employment insurance. The RO and the AMC pursuant to all of the Board's remands have asked the Veteran to provide the appropriate completed releases so VA could seek to obtain any treatment records extant in the possession of those physicians. The SSOCs in the claims file note that on each occasion no authorization was received from the Veteran. The Veteran's representative acknowledges the efforts of the AMC in the May 2013 Informal Hearing Presentation (IHP). A March 2013 letter from the VAMC, Houston, TX, informed the AMC that no additional records related to the Veteran were on file. Additional records were obtained from Central TX Healthcare System and added to the Virtual file in March 2013. Neither the Veteran nor his representative asserts that there are additional records to be obtained. As part of VA's assistance to the Veteran, another examination was conducted in April 2013. The Veteran's representative asserts in the IHP that the examination was inadequate because it did not adequately address or assess all of the Veteran's claimed disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An examination is 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. Stefl, 21 Vet. App. at 123 (citing Ardison v. Brown, 6 Vet. App. 405, 407 -08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Court Of Appeals For Veterans Claims has also held that an examination is inadequate if the examiner ignores a veteran's assertions of continuity of symptomatology. Barr, 21 Vet. App. at 311 (finding error where "the VA examiner did not indicate whether he considered Mr. Barr's assertions of continuity of symptomatology"). As will be discussed in more detail later in this decision, the Board finds the examinations and nexus opinions related to the Veteran's knees are adequate, as the reasons and bases were provided, and the totality of the evidence of record shows a clear factual basis for the opinions rendered. Hence, the Board rejects the representative's assertions that another remand is in order. In light of the above, the Board finds all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him with the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. The Board has reviewed all the evidence in the Veteran's Virtual and paper claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (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. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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 profession." See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.307, 3.309. The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran has a currently diagnosed bilateral knee disorder of degenerative joint disease. Hence, the first requirement for service connection is shown: a diagnosed disease or disorder. 38 C.F.R. § 3.303. The remaining issue is whether the disorder had its clinical onset in active service or is otherwise causally related to active service. The Veteran's medical records also note a history of gout, which can be a form of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5017. The Veteran asserted in an April 2006 statement, VA Form 21-4138, in support of his claim that he received treatment for his ankles and knees at Ft. Polk, Louisiana, in 1964. A February 1964 entry in the service treatment records notes only sore joints in leg, and that the examiner opined the Veteran could stand some arch supports. There is no indication that an examination was conducted of the affected joint(s). The entry also notes the Veteran was to go to the dispensary the next morning if his symptoms worsened, and an analgesic balm is noted. There are no other relevant entries in the service treatment records, but apparently the Veteran was placed on Profile for unstated reasons, in as much as a March 1964 Physical Profile notes he was returned to full duty, effective early March 1964. The only post-induction physical examination of record is a March 1965 Report Of Medical Examination For Flight Physical that indicates normal lower extremities. He denied any relevant complaints on his March 1965 Report of Medical History. Thus, at least as of March 1965, there is no evidence of a diagnosed chronic disorder or disease of the knees. The Veteran testified at the DRO hearing that he received treatment essentially everywhere he performed duty, to include aboard ship and while on temporary duty in Vietnam. As discussed in more detail later, however, he does not definitively relate his claimed in-service treatment to his knees. The primary evidence of the history of the Veteran's gout is his lay testimony. As already noted in the discussion of the legal principles applicable to the Veteran's claim, he and his wife are fully competent to report symptoms that he experienced and his wife observed. 38 C.F.R. § 3.159(a)(1). Lay persons are also competent to identity disorders, if the Board finds the disorder in question is susceptible to lay identification or diagnosis, i.e., varicose veins. The Board finds that, while lay persons may report symptoms such as joint pain or swelling, associating those symptoms with, e.g., diagnosing arthritis, degenerative or gouty, is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a)(2). The Veteran may, of course, report what a physician diagnosed, if he in fact has accurate knowledge or recall of a professional diagnosis; but, that recall or report must be tested against the other evidence of record. Upon August 2010 VA examination, the Veteran reported in-service treatment for sore ankles. The examiner noted the earliest documents of record were VA records of October 2002 that noted a long-term history of gout. The report notes also, however, that the Veteran explained he was not claiming any problems with his knees, as they were fine. He reported his then-current symptoms as ankle pain. The examiner's physical examination of the knees was negative. X-rays of the knees, however, were interpreted as having shown mild degenerative changes. The examiner noted the absence of a diagnosis of record of arthritis in active service and the October 2002 notation that the Veteran reported symptoms of some 15 years in duration, and opined that any gout of the knees was not causally related to the Veteran's active service. The Board remanded the case for further development in December 2010 because the examiner noted review of VA medical records not then in the claims file, and again in February 2013 because the examiner addressed only gout; there was no comment on the degenerative changes noted in the x-rays of the Veteran's knees, and perhaps did not consider all of the evidence of record, to include the Veteran's lay report. The April 2013 examination report reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran to have a diagnosis of osteoarthritis of the knees as of 2010. The Veteran reported a gradual onset of knee pain two years earlier, and he also reported his legs were beaten up in basic training. Contrary to the normal objective findings at the August 2010 examination, physical examination showed pain-free range of motion 10 degrees less than the normal of 0 to 140 degrees. See 38 C.F.R. § 4.21, Plate II. The examination report notes a February 2012 laboratory report noted uric acid level of 6.2. The examiner noted that the objective findings on clinical examination did not reveal any evidence consistent with inflammatory arthritis but degenerative arthritis of both knees as shown on x-rays. The examiner noted there was no evidence of a diagnosed knee disease in the service treatment records, to include a report of physical examination. Further, the examiner opined the bilateral knee degenerative arthritis did not have its onset in active service, as the noted osteoarthritis was related to the normal aging process and the Veteran's obesity. The examiner noted the Veteran weighed 200 pounds after having lost about 30 pounds. As earlier noted, the Veteran's representative asserts the April 2013 examination was inadequate. A close analysis of the representative's assertions, however, show them to be related to the Veteran's ankle and foot (or ankles and feet), which are not the subject of this decision. To the extent the representative's assertions may also involve the knees, the absence of documented treatment in service for a knee disorder was just one basis for the examiner's negative nexus opinion. The Board returns to this later. As noted earlier, if there is evidence of a diagnosed chronic disease in active service or within one year of separation from active service, service connection may be shown by evidence of continuous symptomatology. 38 C.F.R. § 3.303(b). First, as already discussed, two VA medical examiners have opined there was no diagnosed arthritis as the Veteran's separation from active service in 1968. Thus, for lay evidence of symptoms to be probative on presumptive service connection, there must be evidence that arthritis/gout manifested to at least a compensable degree within one year of active service. The Board has reviewed the Veteran's hearing testimony and, while he reported he received treatment after service, he did not suggest a timeframe, let alone assert he received treatment within one year. VA outpatient records of October 2002 note the Veteran's reported history of gout times many years with intermittent episodes. The Veteran was not more specific, other than his symptoms had existed for more than 15 years- and his discharge was over 35 years earlier. Of more significance, however, the Veteran did not report any knee-related symptoms. The October 2002 entry notes his report of a history of swelling of his right ankle and great toe. That is also the case with the Veteran's and his wife's lay testimony: when they provided specifics, the Veteran's assertions of chronic joint pain over the years involved his ankle and feet, not the knees. His wife noted constant problems with the Veteran's feet. See RO Hearing Transcript. This is confirmed by the VA outpatient records that cover 2001 to 2013. While osteoarthritis is noted, the Veteran's chronic complaints relate to his ankles and feet. He reported as much to the examiner at the August 2010 examination. In light of these factors, the Board finds the preponderance of the evidence shows degenerative arthritis of the knees did not manifest to a compensable degree within one year or active service. Hence, there is no factual basis for service connection on a presumptive basis. With respect to the possibility of service connection on a direct basis, the April 2013 examiner opined that the Veteran's osteoarthritis of the knees was due to the normal aging process. The Board finds the examiner's opinion and rationale are fully supported by the evidence of record, as discussed above. See Nieves-Rodriguez, 22 Vet. App. 295. Particularly, the absence of documented treatment or findings until 2010, and the absence of lay evidence specifically indicating the continued presence of knee symptoms (as opposed to the feet or ankles) prior to approximately 1987 (15 years prior to 2002) are consistent with the examiner's findings. Thus, the Board is constrained to find the preponderance of the evidence is against the Veteran's claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for bilateral knee disability, to include arthritis and gout, is denied. REMAND As discussed earlier, the Veteran's report of his multi-year history of gout identified the affected joints as his ankle and foot. Thus, as noted in the Introduction, the Board characterized the issue to include the foot. The April 2013 examination report, however, reflects the examiner addressed only the right ankle, for which no disorder was diagnosed. Although the examiner referenced laboratory tests that revealed no current evidence of gout, the examiner noted that the Veteran takes medication to prevent flare-ups. Further, the examiner did not address the symptoms of the right foot, to include the great toe, and the related x-ray examination report that noted degenerative changes in the metatarsal joint. Thus, the case must be remanded so the examiner can address the right foot and provide a medical nexus opinion. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will arrange an examination by an appropriate examiner to determine if the right ankle and right foot manifests a currently diagnosed disorder, to include gout. All indicated diagnostic tests should be conducted. The claims file must be provided for review as part of the examination. If the examiner determines gout is not currently manifested in either the right ankle or right foot, ask the examiner to opine if the Veteran's prescribed medication prevents gout from being symptomatic in either joint. If so, ask the examiner to opine if there is at least a 50-percent probability that any history of gout or currently diagnosed degenerative changes is related to the Veteran's active service. The examiner is asked to provide a full explanation for any opinion rendered. If the requested opinion cannot be rendered, a full explanation as to why must be provided. 2. After completion of all of the above, the AMC/RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The case should thereafter be returned to the Board, 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. VA will notify him if further action is required on his part. He 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs