Citation Nr: 1326044 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-37 053A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent for attention deficit hyperactivity disorder (ADHD). 2. Whether severance of service connection for ADHD was proper. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from March 1999 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In August 2010, the Veteran testified at a hearing before a VA Decision Review Officer at the RO. In this case, a substantive appeal was received as to the issues of an increased rating for ADHD and service connection for a right knee disorder in October 2009. The Veteran submitted a Notice of Disagreement regarding the severance of service connection for ADHD in March 2012. The RO issued an SOC regarding the issue of severance of service connection for ADHD in November 2011. The severance of service connection for ADHD was addressed by the RO in a December 2012 SSOC. The Veteran did not submit a substantive appeal concerning the issue of severance of service connection for ADHD. However, as the RO addressed the severance of service connection in the December 2012 SSOC, the Board will accept jurisdiction of this issue. Percy v. Shinseki, 23 Vet App. 37 (2009) The issues of entitlement to a rating in excess of 10 percent for service-connected ADHD and the propriety of severance of service connection for ADHD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is presumed sound upon entry into active service, and the evidence does not clearly and unmistakably show that a right knee disability existed prior to active service. 2. The weight of the competent and probative evidence is against a finding that the Veteran's current right knee disorder is attributable to an injury sustained during active military service. CONCLUSION OF LAW A right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, in a July 2007 letter, the RO provided notice to the Veteran needed to substantiate a claim for service connection. The letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The Board notes that the claims file contains only partial treatment records. When service records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA and private treatment records identified by the Veteran have been obtained and associated with the claims file. The Veteran was afforded a VA examination of his right knee in November 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as the opinion was predicated on a full reading of the medical records in the Veteran's claims file. The VA nexus opinion provided considered all of the pertinent evidence of record, to include available service treatment records, private treatment records, and the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. II. Analysis Legal Criteria - Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship of nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for a right knee condition. Service connection may also 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). A veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where evidence or medical judgment is such as to warrant a finding that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111. Clear and unmistakable evidence that the disability both existed prior to service and was not aggravated by service will rebut the presumption of soundness. VAOPGCPREC 3-2003 (July 16, 2003). In rendering a decision on appeal 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49 (1990). The Board has reviewed all the evidence in the Veteran's 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 a veteran 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for a Right Knee Disorder The Veteran asserts that a right knee disorder existed prior to service and was aggravated by training during service. At a hearing at the RO in August 2010, the Veteran asserted that a current right knee disability is related to marching and dropping to the ground with a backpack and an M-16. In a statement dated in February 2011, the Veteran indicated that he sustained a knee injury in 1995. The Veteran reported that his knee injury was aggravated by training during his Army service. The Veteran had active duty service from March 1999 to September 1999. Service treatment records in this case are incomplete. In this case, the enlistment examination is not of record. There are partial service treatment records in evidence which are dated from July 1999 to August 1999. The report of the Veteran's separation examination, dated in August 1999, shows that the Veteran reported "trick of locked knee." He did not state whether the tricked or locked knee was a current problem or one he had in the past. Significantly, clinical evaluation of the lower extremities was normal. The separation examination noted that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. A psychiatric treatment record dated in February 1996 reflects that the Veteran reported chronic right knee pain which was secondary to a mild injury. A VA treatment record dated in May 2005 reflects that the Veteran reported a history of injury of the right knee 10 years prior. The report of the Veteran's enlistment examination is not available for review. Here, the evidence does not show that a right knee condition pre-existed his entry onto active duty. The only evidence of pre-service notation of a complaint regarding the right knee is shown in a psychiatric treatment report dated in 1996, which reflects a complaint of right knee pain. Other than the Veteran's lay assertions, there is no other evidence showing treatment or diagnosis of a right knee disability prior to entry into service. The Board finds that the medical record of a complaint of right knee pain that was reported in 1996 is not sufficient to show that he had a pre-existing right knee disability. The record does not reflect a clinical diagnosis of a right knee disorder. There is no other evidence of treatment or diagnosis of a right knee disorder prior to the Veteran's entry into service. The November 2011 VA medical opinion noted that the Veteran's entrance examination mentioned "swollen and painful joints." Although the examiner indicated that the notation of "swollen and painful joints" was on the enlistment examination, it was actually noted at separation. The VA examiner also noted that the Veteran reported that he was kicked in the knee prior to service, but the VA examiner could not find that documentation. Thus, the VA examination report does not convince the Board that the Veteran had a pre-existing right knee disability. The next question for consideration is whether a current right knee disability is related to an injury or event of service. With respect to a current diagnosis of a right knee disorder, a claim for service connection for a right knee disability was received in July 2007. During the course of the appeal, in September 2007, the Veteran was diagnosed with medial collateral ligament strain. The Board finds that the Veteran has a current right knee disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (clarifying that the requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The Board finds, however, that the Veteran does not have osteoarthritis of the right knee. The Board notes that, although some of the post-service VA treatment records reflect osteoarthritis of the right knee was noted, a November 2011 VA medical opinion concluded that x-rays over the years showed a normal right knee, although clinical records mentioned osteoarthritis. The VA examiner indicated that it was not found on x-rays, and the current x-rays on the VA examination were normal. The next question for consideration is whether a current right knee disability, manifested by medial collateral ligament strain is related to service. Here, evidence addressing the etiology of the current disability comes from the Veteran and from the November 2011 VA examiner. The VA examiner considered the Veteran's assertion of a pre-service disability, but no evidence of a right knee disability in service. In addition, the examiner noted a post-service history of knee injury and reported that the Veteran underwent surgery in 2005; an arthrotomy for a meniscus repair, and in 2007, the right knee was slammed in a car or a truck door. The VA examiner indicated that there are a number of entries about right knee problems over the years but very few prior to that time frame. The VA examiner indicated that he tried to find the specific operative notation from 2005, but other than the preoperative history and physical, could not find a specific onset of timeframes concerning the right knee itself and what it was due to, and the reason for performing the surgery. The VA examiner further noted that x-rays at the VA facility through the years showed a normal right knee, without evidence of osteoarthritis, although clinical records occasionally mention specific osteoarthritis. The VA examiner stated that, regardless, it was not found on x-rays. The VA examiner found that it was "speculative at best" as to whether the current right knee condition was incurred in or caused by service activities and noted that there were no entries showing a right knee disability while on active duty. While there was documentation from 2005 showing surgery to the right knee, the VA examiner indicated that there was no etiology or time frame as to how long it had been there. The VA examiner noted that current x-rays were all normal. The Board has considered the Veteran's testimony and statements. At a hearing at the RO in August 2010, the Veteran testified his right knee condition was caused by marching. He stated that he visited sick call during service and received ibuprofen. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, such as having knee pain in service and visiting sick call. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this case, the Board finds the Veteran credible with regard to his report that he had knee pain in service after a march. However, to the extent that he argues that he had a right knee disability upon discharge from service, the Board finds the separation examination in November 1999 is more persuasive evidence. That examination did not note any right knee disability. In addition, the Veteran's testimony is not competent to satisfy the requirement of medical evidence linking a current right knee disability to service because the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether a current medial collateral ligament strain is related to knee pain he had in service. See Jandreau, 492 F.3d at 1377. The preponderance of the evidence is against a finding of a nexus between the current right knee disability and service. For these reasons, as the preponderance of the evidence weighs against finding that the claimed right knee disability is causally or etiologically related to service, service connection must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for a right knee condition is denied. REMAND The record as it stands is currently not sufficient to render a decision on the issue of whether severance of service connection for ADHD was proper. Subject to the limitations contained in 38 C.F.R. §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous (the burden of proof being upon the Government). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 U.S.C.A. §§ 5109A, 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(d) (2012). Clear and unmistakable (CUE) is defined as "a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In accordance with section 3.105(a), to determine whether CUE was present in a prior decision, either the correct facts, as they were known at the time, must not have been before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time must have been incorrectly applied. The error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The provisions of 38 C.F.R. § 3.105(d) (revisions of decisions) specifically state that a change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When VA seeks to sever service connection, section 3.105(d) imposes the same burden of proof that is placed on a claimant who, under section 3.105(a), seeks to have a previous unfavorable decision overturned. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Unlike section 3.105(a), however, section 3.105(d) as applicable to severance cases does not limit the reviewable evidence to that which was before the RO at the time of the initial service connection award. See Stallworth, 20 Vet. App. at 488 (2006); Daniels, 10 Vet. App. at 480; Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The regulation specifically allows a change in medical diagnosis to serve as a basis for severance, and the Court in Venturella reasoned that this language clearly contemplates the consideration of evidence acquired after the original grant of service connection. If "the Court were to conclude that . . . a service-connection award can be terminated pursuant to §3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Venturella, 10 Vet. App. at 342-43. A January 2012 rating decision severed service connection for ADHD. The rating decision found that there was a clear and unmistakable error in the granting of service connection for ADHD. The RO found that a November 2011 VA examination indicated that the Veteran had "no mental disorder diagnosis." The November 2011 VA examination does not meet the requirements described under the provisions of 38 C.F.R. § 3.105(d). The Board believes that the essential matter involved in this case is whether a change in diagnosis is warranted; i.e. whether the Veteran does not currently have ADHD. Accordingly, the Board finds that an opinion should be sought regarding whether, in the light of all accumulated evidence, the diagnosis on which service connection was predicated in an October 2007 rating action was clearly erroneous, to include a summary of the facts, findings, and reasons supporting the conclusion reached as required under 38 C.F.R. § 3.105(d). The claim for a higher initial evaluation for ADHD is intertwined with the issue of the propriety of severance of service connection for ADHD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are " inextricably intertwined " when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, action on that claim is deferred pending additional development described below. Accordingly, these matters are REMANDED for the following action: 1. The RO should arrange for a review of the claims file, to include the October 2007 rating decision, service treatment records, private and VA treatment records, prior VA examinations, as well as any additional records obtained on remand, by an appropriate VA examining physician or physicians or other proper medical authority. The examiner should provide an opinion/certification in the light of all accumulated evidence, pertaining to whether the diagnosis of ADHD on which service connection was predicated in the October 2007 rating action was clearly erroneous. If the examiner determines that the diagnosis was clearly erroneous, then the examiner must certify this determination and provide a summary of the facts, findings, and reasons supporting the conclusion. A copy of this remand should also be provided for the examiner. 2. Following the completion of the requested development, the RO should readjudicate the issue of the propriety of the severance of service connection for ADHD. If the benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. An appropriate period of time should be allowed for response. The claims files should then be returned to the Board, if otherwise in order. 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs