Citation Nr: 1329485 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-22 421A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a respiratory disability, claimed as bacterial pharyngitis with chronic bronchitis due to strep throat and pneumonia (respiratory disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Board reopened the Veteran's claims and remanded them for additional development and consideration. All requested actions have been completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's left knee arthritis had its onset in service. 2. The preponderance of the evidence shows that the Veteran does not have a respiratory disorder. CONCLUSIONS OF LAW 1. Left knee arthritis was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2013). 2. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duty to notify and assist In this decision, the Board grants service connection for left knee arthritis. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary for this claim only. As to the Veteran's respiratory claim, VA's duty to notify requires VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (Notice errors are reviewed under a prejudicial error rule). In a September 2009 letter provided notice as to the information and evidence needed to substantiate his claim for service connection for a respiratory disability, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in July 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records and examination reports, and private treatment records. Additionally, the RO substantially complied with the prior May 2013 remand instructions. Instructions pertinent to the claim being decided included obtaining additional VA treatment records, and scheduling the Veteran for an appropriate VA examination concerning his claim. In response, the Veteran was provided a VA examination in June 2013. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Service Connection The Veteran presently seeks to establish service connection for a left knee and respiratory disabilities, which he reports have existed since his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, 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 v. Derwinski, 2 Vet. App. 614, 618 (1992). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Knee Disability The evidence of record clearly establishes that the Veteran has a current left knee disability. Most recently, the June 2013 VA examination reports a diagnosis of degenerative arthritis of the left knee, as confirmed by x-ray findings. The Veteran's service treatment records are negative for any complaints, treatment, or diagnoses regarding the left knee. However, the Veteran has consistently reported that he injured the left knee in service when he fell while moving heavy equipment. The Veteran's service treatment records do note a sprain to the Veteran's left ankle in February 1962, as a result of stepping in a hole. Following service, the Veteran sought treatment for his left knee from various VA and private treatment providers through March 2013. Beginning in November 1998, a VA examiner diagnosed the Veteran with left knee joint pain secondary to history of injury in 1962. An August 1999 letter from Dr.Georgiou, a private physician, stated that he had treated the Veteran for chronic streptococcal infections, the result of which was rheumatic fever causing severe pains in several joints. A July 2006 VA examination report reflects the opinion that it is less likely than not that the Veteran's left knee disability is related to his military duties as there is no documentation that there were any complaints of the left knee at that time. A November 2006 letter from Dr. Sardesai, a private physician, reflects that rheumatic fever and subsequent untreated streptococcal reactions can cause flare-ups of poly-arthralgia. Dr. Sardesai opined that the Veteran has poly-arthralgia secondary to rheumatic fever because of the number of years that this has been prevalent. An April 2007 VA examination report reflects the opinion that it is not at least as likely as not that the veteran's left knee disability is medically related to his active military service as there is no evidence in the service medical records that he injured his left knee, requiring treatment, when he stepped into a hole. In this regard, the examiner acknowledged the in-service left ankle sprain but, as discussed above, pointed out that there was no complaint of any knee injury at that time. Following the Board's May 2013 remand, he was afforded a VA examination in June 2013. The report of that examination reflects that the examiner concluded that it is at least as likely as not that the Veteran's left knee arthritis was incurred in or caused by the claimed in-service injury. The examiner determined that the Veteran had a credible history of an injury to the left knee, and he appears to be an honest and reliable citizen. The examiner further stated it is presumed the service treatment record reflecting the episode is lost. The Board accords more probative weight to the June 2013 VA examiner's favorable opinion than the prior July 2006 and April 2007 VA examinations. The June 2013 examiner's opinion is based on a complete review of the claims file and also provides a clear rationale, supported by the objective medical evidence. The examiner provided a reasoned medical explanation for why the Veteran's left knee disability is attributable to his military service. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, the Board finds the July 2006 and April 2007 VA examiner's opinions to be inadequate. Specifically, in rendering their unfavorable opinions, both examiners point to the lack of in-service documentation of the claimed event, which is not sufficient rationale to support their findings. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Board agrees with the June 2013 VA examiner that the Veteran is competent to report symptoms such as pain and difficulty walking due to his left knee as they are well within his realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of his statements as the June 2013 VA examiner finds the Veteran to be an honest and reliable citizen. So, his lay testimony is both competent and credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). Therefore, service connection for left knee arthritis is warranted. Respiratory Disability For the reasons set forth below, the Board has determined that the record does not contain a competent and credible diagnosis of a respiratory disability at any time during the pendency of his appeal. See 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303; McClain. The Veteran's self-reported January 1961 pre-induction examination shows he had a history of persistent sore throats. He also noted pain or pressure in his chest. However, he specifically denied a history of asthma or shortness of breath. The Veteran's service treatment records show he was treated in October 1961 for cough and dry throat. A specific diagnosis was not provided. His separation examination is silent for any diagnosed respiratory disabilities. Following his separation from service, a February 1999 statement from his private physician, Dr. Georgiou, indicated the Veteran had a history of Streptococcal infections of the throat, the result of which is rheumatic fever, causing severe pains in several joints. VA treatment records show he was treated for psychiatric symptoms in February 1999, at which time, he stated there was a numbness spreading from his groin to his chest and lungs. However, his VA treating physicians at no point provided a diagnosis of a respiratory disorder. An October 1999 VA examination noted the Veteran denied having emphysema or bronchitis. His chest was described as symmetrical in contour and equal in expansion. The heart and lungs were normal. However, the VA examiner diagnosed the Veteran with breathing difficulties due to old pneumonia, based on the Veteran's reported history. A September 2004 MRI of the Veteran's lungs showed diffuse moderate hyperinflation compatible with chronic obstructive lung disease, rather mild. However, the radiologist determined there was no active pulmonary pathology, no infiltrates, or consolidation. Further, there was no pleural thickening or calcifications. A subsequent December 2006 MRI again showed moderate hyperinflation of the lungs, with no infiltrates or modules, pleural disease or effusion recognized. A November 2006 statement from Dr. Sardesai indicated the Veteran's main medical problem was poly-arthralgia. This physician notes the Veteran has poly-arthralgia secondary to his treatment for rheumatic fever. However, no diagnosis was provided regarding a current respiratory disability. Additional private treatment records dated through March 2013 fail to provide a diagnosis of a respiratory disability. In fact, in February 2013, the Veteran specifically denied chest pain, shortness of breath, or dizziness. Following the Board's May 2013 remand, he was afforded a VA examination in June 2013. The June 2013 VA examiner noted a diagnosis of pneumonia in 1963. The examiner also noted the Veteran's report that he suffered from pneumonia while in service, although this was not reflected in the service treatment records. Further, the Veteran reported he had pneumonia three times between 1963 and 1970. Following the physical examination of the Veteran, the examiner concluded the claimed condition was less likely as not incurred in or caused by service. As support for this conclusion, the examiner noted there were no records of a respiratory issue in service. Further, even if the Veteran did have pneumonia in service and in civilian life, there is no relationship between the two. The examiner stated that some people have a higher tendency towards pneumonia than others. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disability, as he does not have a current diagnosis, or persistent or recurrent symptoms a disorder related to his military service. The Board finds the unfavorable conclusions of the June 2013 VA examiner to be clear and supported by the objective medical evidence. The examiner provided a reasoned medical explanation for why the Veteran does not have respiratory disability, even considering his reports of pneumonia in- service despite a lack of documentation, and even following his separation from service. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board acknowledges the Veteran's lay statements in support of his claim. Further, while he is competent to testify as to his symptoms, as a lay person, he is not competent to diagnose such symptoms as a respiratory disability, as such matter requires medical testing and training to determine. Accordingly, his opinion as to the diagnosis or etiology of a respiratory disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the VA examiner's opinions are significantly more probative than the Veteran's lay assertions. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a respiratory disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for left knee arthritis is granted. Service connection for a respiratory disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs