Citation Nr: 1330382 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-05 379 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for diabetes mellitus, including as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1960 to July 1979. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a January 2009 rating decisions issued by the RO. The Veteran's original claim of service connection for a right knee disorder was denied in December 2002. In July 2004, the Board determined that correspondence dated in April 2003 and August 2003 constituted valid Notices of Disagreement with the December 2002 rating decision with respect to the Veteran's claim and directed the RO to issue a Statement of the Case (SOC). In February 2004, the Veteran again had claimed service connection for a right knee disorder. His claim was denied by the RO in April 2005 on the basis that new and material evidence had not been received to reopen the claim. The Board notes that the Veteran initially had requested a hearing before a Veterans Law Judge. However, he subsequently cancelled the hearing. Therefore, a hearing was not held in this matter. FINDING OF FACT The currently demonstrated right knee disability manifested by degenerative changes is shown as likely as not to be due to an injury that the Veteran sustained while on active duty. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his right knee disability manifested by degenerative changes was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 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 CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including degenerative joint disease and diabetes, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Right knee injury. The Veteran asserts that he suffered a right knee injury in connection with his duties during his extensive period of active service. Specifically, at a November 2009 VA examination the Veteran reported injuring his right knee in service when a ladder that was not properly secured fell from an aircraft and hit his knee. He reported that, every so often, the right knee would get inflamed and cause pain and immobility since the injury. Significantly, the service treatment records show that, in February 1973, the Veteran reported having pain from the right knee to ankle and feeling like he had twisted his knee. He denied having trauma to the right knee. He experienced pain on the 'inside' of the right knee when he pivoted on his right ankle. The knee had also given out. There was no locking or instability. The diagnostic impression was that of internal derangement probably of the right lateral collateral meniscus. It was indicated that an X-ray study of the knee was planned, and there was a reference to what appears to be old trauma of the tibial tubercle. The Veteran's separation examination in June 1979 noted that the lower extremities were assessed as being "NORMAL," although a two inch linear scar on the right knee was noted . The Veteran was afforded a VA examination in November 2009. At that time, the Veteran reported that he was hit in the right knee with a ladder in service and the tendons in the right knee got inflamed and produced pain and inability to move the knee. This happened every so often without a specific trigger or timing. He took Motrin with good response. An examination of the knee noted crepitus, and the Veteran had 0 degrees of extension to 125 degrees of flexion. The X-ray studies of the right knee were noted to show findings of degenerative changes. The VA examiner opined that the Veteran's right knee arthritis was less likely than not related to his military service. There was noted to have been one instance in service when the Veteran was seen for pain from knee to ankle, but no records of a continuity of right knee complaints, evaluations, or treatment. The examiner added that there was no history of acute trauma to the right knee that could account for the current osteoarthritis of the right knee. The examiner noted that the Veteran had a long history of obesity which was considered to be one of the most important risk factors for the development of osteoarthritis in the knees. The examiner opined that the Veteran's right knee arthritis was less likely than not due to service and at least as likely as not due to a long history of obesity. To the extent that the Veteran now reports injuring his right knee in service, he is competent to describe such an event as well as his ongoing disabling manifestations since service. Significantly, on close review of the February 1973 service treatment record, the Board finds sufficient information to support the Veteran's lay assertions of sustaining some form of significant trauma to his right knee during service. Accordingly, on this record, the Veteran's lay statements are found to be credible and must be afforded significant probative weight. While the VA examiner found no history of acute trauma in service to account for the Veteran's current right knee pathology manifested by degenerative changes, this conclusion is not supported by the evidence of record. Moreover, in fully considering the Veteran's credible lay assertions, the VA examiner's opinion does provide a basis for linking the onset of the right knee degenerative changes to trauma that he reported sustaining during service. Based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current right knee degenerative changes as likely as not are due to an injury sustained during the Veteran's extensive period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for right knee degenerative changes is granted. REMAND In this case, the service treatment records are negative for complaints or findings referable to diabetes mellitus. There is no documentation of a diagnosis of diabetes within one year of service. The first medical evidence showing diabetes mellitus is dated several decades after service. However, it appears to the Board that there may be important medical evidence that has not been obtained for review in this case. Moreover, to the extent that the Veteran now relates the onset of his diabetes mellitus to his service-connected disabilities, he should be afforded a VA examination to determine the likely etiology and date of onset of the claimed diabetes mellitus. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request the names, addresses, and, if applicable, proper authorizations for any non-VA or VA medical care providers who have treated him for the claimed diabetes mellitus since service. For any such source identified by the Veteran, the RO should contact that medical care provider and request copies of any pertinent medical records. Any negative reply must be documented for the record. In particular, the RO should take all indicated action to obtain copies of all clinical records from Naval Hospital in Jacksonville, Florida referable to treatment rendered the Veteran at that facility since service. In addition, the Veteran should be notified that he may submit medical evidence or treatment records to support his claim. 2. The RO then should have the Veteran scheduled for a VA examination in order to determine the current nature and likely etiology of the claimed diabetes mellitus. All indicated tests and studies should be accomplished and the findings then reported in detail. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner/reviewer must confirm that the record was reviewed in the examination report. The examiner then should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that the current diabetes mellitus had its clinical onset during the Veteran's extended period of active service or during the first year thereafter or otherwise was caused or aggravated by a service-connected disability. All relevant medical records, including the claims folder, must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A clear rationale for all opinions is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a fully responsive Supplemental Statement of the Case and be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs