Citation Nr: 1329287 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-05 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disorder, including degenerative joint disease (DJD) and patellar chondromalacia. 2. Entitlement to service connection for a left knee disorder, including DJD and patellar chondromalacia. 3. Entitlement to service connection for bilateral foot disorder, including DJD of the right great toe and bilateral plantar fasciitis. REPRESENTATION Appellant represented by: John L. Jernigan, III (Attorney) WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1982, and from September 26, 1983 to October 28, 1983. He was a member of the Army National Guard of Alabama from November 1985 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. The Veteran testified before at a Video-Conference hearing in May 2010 and April 2013. The May 2010 hearing transcripts has been associated with the claims file and the April 2013 hearing transcript is in the Virtual VA electronic claims file. FINDINGS OF FACT 1. Bilateral patellar chondromalacia was "noted" on entrance into service. 2. The Veteran's bilateral patellar chondromalacia was aggravated beyond its natural progression by in-service physical activities. 3. The Veteran has currently diagnosed bilateral knee patellar chondromalacia, patellofemoral syndrome, and DJD of the knees. 4. The medical evidence of record establishes that patellar chondromalacia and patellofemoral syndrome are interchangeable diagnoses. 5. Symptoms of bilateral knee DJD have been continuous since service separation. 6. The Veteran has currently diagnosed plantar fasciitis of the feet and DJD of the right great toe. 7. The Veteran experienced unremitting foot disorder symptoms in service and since service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, including DJD and patellar chondromalacia, have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 2. The criteria for service connection for a left knee disorder, including DJD and patellar chondromalacia, have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 3. The criteria for service connection for a bilateral foot disorder, including DJD of the right great toe and bilateral plantar fasciitis, have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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), 3.159, 3.326(a) (2012). As the Board is granting service connection for right and left knee disorder and bilateral foot disorder, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Law and Analysis 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 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). The condition of DJD (arthritis) is considered a "chronic disease" as listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre- existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). Competency of evidence differs from weight and credibility. Competency 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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. See 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 Right and Left Knee Disorders The Veteran contends that service connection is warranted for his right and left knee disorders. Specifically, he asserts that while patella chondromalacia may have pre- existed service, this disorder was aggravated by the physical demands associated with basic training in service. See May 2010 Hearing Transcript at pg. 4-5 and April 2013 Hearing Transcript at pg. 5-6. At the outset, the Board finds that the Veteran has currently diagnosed bilateral patellofemoral syndrome and DJD of the knees. See January 2012 and April 2012 Bayside Orthopedics treatment notes and February 2012 VA knee examination report. Further, the Board finds that the evidence is in equipoise as to whether the Veteran has a current diagnosis of patellar chondromalacia. Weighing against a diagnosis of chondromalacia is the February 2012 VA examination report where the VA examiner diagnosed the Veteran with patellofemoral syndrome bilaterally, and not patellar chondromalacia. Weighing in favor of a patellar chondromalacia diagnosis is a January 2012 correspondence from Dr. T.E. where he stated that the Veteran had a diagnosis of chondromalacia of the patella as well as patellofemoral syndrome. According to Dr. T.E., both of these diagnoses are "interchangeable and essentially mean the same thing." Specifically, Dr. T.E. noted that the Veteran had pain and difficulty in and around the patella and femur and the articulations within the superior aspect of the knee. According to Dr. T.E., the Veteran also had cartilage wear, and both of these diagnoses (chondromalacia of the patella as well as patellofemoral syndrome), described the clinical findings according to the Veteran's history, documentation form the VA, and clinical examination and findings by Dr. T.E. Further supporting a diagnosis of chondromalacia are internet articles submitted from the Veteran discussing similarities between symptoms of patellofemoral syndrome and chondromalacia. Moreover, according to Dorland's Illustrated Medical Dictionary, chondromalacia, in general, means a softening of the articular cartilage, most frequently in the patella; and chondromalacia patellae, means pain and crepitus over the anterior aspect of the knee, with softening of the cartilage on the articular surface of the patella, and in later stages, effusion. See Dorland's Illustrated Medical Dictionary 358 (31st ed. 2007). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has currently diagnosed bilateral knee patellar chondromalacia (a.k.a., patellofemoral syndrome). Next, the Board finds that bilateral knee patellar chondromalacia was "noted" on service entrance and therefore pre-existed service. See 38 C.F.R. § 3.304(b). In a clinical record narrative report dated June 1980, the in- service examiner stated that the Veteran was sent to the Medical Review Board because of bilateral knee and bilateral foot pain. The June 1980 clinical record further stated that the Veteran's bilateral knee pain began in high school, approximately four years ago (i.e., 1976). In a service entrance medical examination report which appears to be dated June 1980 (date is partially illegible), the Veteran's feet and lower extremities were noted as "abnormal." For these reasons, the Board finds that there is clear and unmistakable evidence, as shown by the June 1980 enlistment examination, that a bilateral knee disability, namely patellar chondromalacia, pre-existed service. The Board further finds that the weight of the evidence of record demonstrates that bilateral knee patellar chondromalacia was aggravated beyond its natural progression by in-service physical activities. The June 1980 in-service clinical record noted that the Veteran's chondromalacia was "aggravated during service." Specifically, it was noted that the Veteran's bilateral knee pain was made worse by walking over 100 yards, walking upstairs, and running. Review of service treatment records during the Veteran's first period of service, reveals that in July 1980, the Veteran complained that his knee pain began during basic training. His pain was initially restricted to physical training, such as running or marching; however, it was noted that the pain "increased" to include other activities. During the July 1980 treatment note, the in-service doctor noted that the Veteran's knee pain was aggravated by prolonged standing and walking on hard surfaces and was manifested by a "burning ache" in his legs and "catching and sticking" in his knees. The Board finds that this evidence weighs in favor of a finding that bilateral knee chondromalacia was aggravated beyond its natural progression by in-service physical activities. The Board has also reviewed the December 2006 VA knee examination. During the evaluation, the nurse practitioner who examined the Veteran diagnosed (1) patellofemoral syndrome of the knees bilaterally; and (2) arthritis of the knees bilaterally, no discrete evidence of chondromalacia. That examiner opined that the Veteran did not have any discrete evidence of chondromalacia, but rather arthritis of the knees bilaterally. On that basis, the examiner opined that it was "less likely as not" that the Veteran's claim of chondromalacia was service related. In other words, since there was no discrete evidence of chondromalacia, it was unlikely that any claimed chondromalacia could be related to service. Because the Board has found, based on the evidence of record, that patellar chondromalacia and patellofemoral syndrome are interchangeable diagnoses, the Board finds that the December 2006 VA examiner is of little probative value as to whether the Veteran's bilateral knee chondromalacia was aggravated beyond its natural progression by in-service physical activities. The Board has also considered the February 2012 VA knee examination report. Although the VA examiner found that the Veteran's bilateral knee chondromalacia pre-existed service, the examiner opined that it was not aggravated beyond its natural progression in service. In support of this opinion, the February 2012 VA examiner reasoned that there was no evidence of chondromalacia patella on current x-rays. As noted above, the Board has found that the competent evidence of record demonstrates a current diagnosis of patellar chondromalacia; as such, the February 2012 VA medical opinion is afforded little probative value. See January 2012 and April 2012 Bayside Orthopedics treatment notes. Also weighing in favor of the claim for service connection for right and left knee disorders are the Veteran's statements and the current diagnosis of DJD, formally diagnosed in 2006, only three years after service separation. See December 2006 VA knee examination report. The Board finds that the Veteran has consistently and credibly maintained that he experienced bilateral knee pain in service and continuously since service separation. See May 2010 Hearing Transcript at pg. 4-5 and April 2013 Hearing Transcript at pg. 5-6. The Board notes that despite the December 2006 and February 2012 VA examiner's diagnoses of DJD of the knees, the examiners did not provide an opinion or rationale as to whether bilateral knee DJD was incurred in or related to service. Accordingly, the Board finds that the December 2006 and February 2012 medical opinions to be of little probative value as to whether DJD of the knees is related to service. For these reasons, the Board finds that the weight of the competent, probative, and credible evidence of record demonstrates that the Veteran's bilateral knee patellar chondromalacia pre-existed service entrance and was aggravated beyond the natural progress of the disease during active duty service. 38 C.F.R. § 3.306(a),(b). The Board further finds that symptoms of DJD of the knees were continuous since service separation. 38 C.F.R. § 3.303(b). Thus, the Board finds that service connection for right and left knee disorders, including patellar chondromalacia and DJD is warranted. Service Connection for Bilateral Foot Disorder The Veteran contends that he was first diagnosed with metatarsalgia in service and later, after service separation, was diagnosed with plantar fasciitis. Notwithstanding different diagnoses, the Veteran maintains that his bilateral foot pain began in service and has been unremitting since service separation. See April 2013 Hearing Transcript at pg. 13-14. Initially, the Board finds that the evidence of record demonstrates current diagnoses of bilateral plantar fasciitis and DJD of the great right toe. See December 2006 VA examination report and February 2012 VA examination report. Further, the Board finds that the Veteran experienced unremitting and progressive symptoms relating to his foot disorders in service and after service separation. See 38 C.F.R. § 3.303(d). Weighing in favor of the Veteran's claim for service connection for a bilateral foot disorder are service treatment records during the Veteran's first period of service, which show a number of records of treatment of the feet with various different findings referable to bilateral foot symptoms. A clinical record dated June 1980 contains findings including mild hammering of the third toe of both feet, nontender corn over distal interphalangeal joint of the right 5th toe; and bilateral foot pain located under the first, second, and third metatarsal heads of the left foot and under the first and second metatarsal heads of the right foot. That report concludes with a diagnosis of metatarsalgia, bilateral, mild, service connected. Although the Veteran's service entrance examination noted "abnormal" findings of the Veteran's feet, the pre-existing condition was found to be metatarsalgia, and not DJD of the right great toe or plantar fasciitis. As such, the Veteran was presumed sound as to these disorders upon entrance into service. See 38 C.F.R. § 3.304(b). Post-service private treatment records reveal a diagnosis of plantar fasciitis as early as March 2002 by Dr. B.H. During the March 2002 treatment note the Veteran reported that he had been "living with pain" and often limped. The Veteran also noted that he had undergone orthopedic treatment with accommodations made on the outside of his shoes, which helped him somewhat. In a later October 2005 treatment note from Dr. B.H., the Veteran reported pain, burning, and stinging of feet. The Veteran stated that his pain had continued to be a problem since his time in service. He stated that he had limping and had to walk with a cane. At the October 2005 treatment session, Dr. B.H. diagnosed the Veteran with "chronic plantar fasciitis bilateral with ft. pain." Further weighing in favor of the Veteran's claim for service connection are the Veteran's lay statements. Upon review of all the evidence of record, the Board finds that the Veteran has consistently and credibly reported unremitting bilateral foot pain. This includes his complaints and treatment for bilateral foot pain in service, complaints and treatment for bilateral pain after service separation, his hearing testimony in May 2010 and April 2013, statements rendered during the December 2006 and February 2012 VA examination reports, his written statements dated August 2005, September 2005, October 2005, and August 2010, and his wife's July 2010 correspondence stating that she had witnessed the Veteran complain of foot pain for 26 years. The Board has also reviewed the December 2006 and February 2012 VA examination reports which both diagnose the Veteran with plantar fasciitis. That notwithstanding, the Board finds that neither of these VA examinations are of probative weight as they both lack an opinion as to whether currently diagnosed plantar fasciitis or DJD of the right great toe were incurred in or related to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the weight of the competent, credible, and probative evidence demonstrates chronic unremitting foot problems in service and after service separation. As such, the Board finds that the Veteran's diagnosed bilateral plantar fasciitis was incurred in service. See 38 C.F.R. § 3.303(d). Similarly, symptoms associated with currently diagnosed DJD of the right toe have been continuous since service separation. 38 C.F.R. § 3.303(b). Accordingly, service connection for a bilateral foot disorder, including DJD of the right great toe and bilateral plantar fasciitis is warranted. ORDER Service connection for a right knee disorder, including DJD and patellar chondromalacia, is granted. Service connection for a left knee disorder, including DJD and patellar chondromalacia, is granted. Service connection for a bilateral foot disorder, including DJD of the right great toe and bilateral plantar fasciitis, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs