Citation Nr: 1329343 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-26 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected degenerative joint disease of the right knee. 2. Entitlement to an increased rating for degenerative joint disease of the right knee, currently rated 10 percent disabling on the basis of limitation of knee flexion since February 15, 2013, and 20 percent disabling on the basis of traumatic arthritis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1951 to May 1953. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, the RO denied entitlement to service connection for a left knee disability and granted a 10 percent rating for degenerative joint disease of the right knee, effective October 24, 2005. In December 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with his claims folder. In an August 2007 decision, the DRO granted an increased (20 percent) rating for degenerative joint disease of the right knee, effective October 24, 2005. In his August 2007 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO by videoconference. In September 2009, he withdrew his hearing request. In August 2010, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In August 2010, the Board denied the claim of service connection for a left knee disability and the claim for a rating in excess of 20 percent for degenerative joint disease of the right knee. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 memorandum decision, the Court set aside the Board's August 2010 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In January 2013, the Board remanded these matters for further development in compliance with the Court's decision. In June 2013, the Appeals Management Center granted a separate increased (10 percent) rating for limitation of flexion of the right knee, effective from February 15, 2013. (The claim for an increased rating for right knee disability is addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran has a current left knee arthritis that is, at least in part, the result of an in-service injury. CONCLUSION OF LAW The Veteran has a current left knee arthritis that is the result of an injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (2006). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition 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 Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) 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 United States Court of Appeals for the Federal Circuit (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 professional." 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, 10 Vet. App. at 496 (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 (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 also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a June 2013 VA examination report includes a diagnosis of degenerative joint disease of the left knee. Thus, a current left knee disability has been demonstrated. Service treatment records indicate that in July 1952 the Veteran was injured when his right leg and knee were pinned against the side of a truck by a heavy weight. There is no evidence of any complaints of or treatment for left knee problems in his service treatment records. Nevertheless, he contends that he also sustained a left knee injury at the time of the July 1952 incident and that he has experienced a continuity of left knee symptomatology (including pain) in the years since that time. The Veteran is competent to report a left knee injury in service, symptoms of a left knee disability (such as pain), and a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Although there is no contemporaneous medical evidence of a left knee injury in service or of left knee symptoms for many years after service, there is no affirmative evidence to explicitly contradict the Veteran's reports and his reports are not inconsistent with the evidence of record. Thus, the Board finds that the reports of a left knee injury in service and of a continuity of left knee symptomatology in the years since service are credible. There are conflicting medical opinions as to whether a direct relationship exists between the Veteran's current left knee disability and service. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). A February 2006 VA examination report includes an opinion that the Veteran's current degenerative joint disease of the left knee was not likely ("less likely than not") related to service. This opinion was based on the fact that there was no indication that the left knee/leg was injured at the same time as the right knee/leg. The physician who conducted an August 2007 VA examination stated that the Veteran's medical records did not indicate any injury of the left knee during service. Degenerative joint disease was present bilaterally and likely would have been present irrespective of any such injury. The nurse practitioner who conducted a February 2013 VA examination opined that the Veteran's current left knee disability was likely ("at least as likely as not") the long-term result of the in-service accident in 1952 and the process of aging. She reasoned that although there was no documentation in the Veteran's service treatment records of any left knee injury, he described the 1952 accident as involving both knees, the knees had similar imaging findings on X-rays, and his condition was chronic. The February 2006 opinion is of minimal probative value because it is entirely based on a lack of objective clinical evidence of a left knee injury in service and it does not reflect consideration of the Veteran's reports of such an injury in service and of a continuity of left knee symptomatology in the years since service. In this regard, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The statement by the examiner who conducted the August 2007 VA examination is also of little probative value because although it alludes to a conclusion that the Veteran's left knee disability was not related to any in-service service injury, there was no explicit opinion as whether the disability was directly related to service. Moreover, the examiner did not acknowledge or discuss the Veteran's reports of a left knee injury in service and of a continuity of symptoms since service. See Id. The February 2013 opinion, however, was based upon an examination of the Veteran and a review of his medical records and reported history and it is accompanied by a specific rationale that is not inconsistent with the evidence of record. Thus, this opinion is adequate and entitled to substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran has a current left knee disability, that he sustained a left knee injury in service, and that his left knee disability is, at least in part, a result of the in-service injury. In light of the February 2013 opinion and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for the currently diagnosed left knee disability have been met. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. ORDER Entitlement to service connection for left knee arthritis is granted. REMAND Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). The Veteran was afforded a VA examination in June 2013 to determine the current severity of his service-connected right knee disability. Ranges of right knee motion were reported and it was noted that there was pain associated with the ranges of motion at 90 degrees of flexion. There was functional loss and/or functional impairment of the knee in terms of less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. Also, the Veteran reported flare ups of knee pain. However, he was able to flex and extend his knee to 110 degrees and 0 degrees, respectively. Although the June 2013 examiner noted that there were no motion changes following repetitive use, he did not note the point, if any, at which the above-reported factors caused functional impairment. Rather, he concluded that he was "unable to determine without resorting to speculation any pain, weakness, fatigability or incoordination due to repeated use or during flare-ups." He explained that the Veteran was not having a flare-up and was not using the knee in such a manner to cause such complaints at the time of the examination. The June 2013 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to the extent of any functional impairment of the right knee could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Thus, clarification is required. See Mitchell, 25 Vet. App. at 43-4; 38 C.F.R. §§ 4.40, 4.45, 4.59. (The holding in DeLuca requires what amounts to some degree of conjecture or speculation on an examiner's part-requiring an estimate of the degree of functional loss caused by symptoms such as pain and weakness expressed in terms of additional loss of motion.) VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner other than the physician who conducted the June 2013 VA examination to evaluate the current severity of the service- connected right knee disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The ranges of right knee flexion and extension shall be reported in degrees. The examiner shall also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner shall secondly address any loss of endurance, coordination, speed, or strength because of symptoms such as pain. The examiner shall, to the full extent possible, equate the level of impairment caused by all such losses to an equivalent level of decreased range of motion, stated in degrees. This shall be done for both knee flexion and extension. Conjecture on the examiner's part is necessary. DeLuca, supra. The examiner shall report if there is ankylosis of the right knee and, if so, the angle at which the knee is held. The examiner shall also report whether there is subluxation or instability of the right knee, and if present, provide an opinion as to its severity (i.e. slight, moderate, or severe) and whether it is caused by service-connected arthritis. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his right knee disability. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. 2. The agency of original jurisdiction (AOJ) shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 3. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. (The AOJ should specifically reconsider the propriety of assigning separating ratings as it did in June 2013 under limitation of motion criteria and the criteria of Diagnostic Code 5010.) After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs