Citation Nr: 1330874 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-00 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1980 to September 1988. Thereafter, he was a member of the Army National Guard and had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a July 2006 rating decision issued by the Regional Office (RO) in Philadelphia, Pennsylvania. It was remanded by the Board for additional development in August 2011 and in February 2013. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011. The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT It is at least as likely as not that the Veteran's preexisting left knee disability was aggravated beyond its normal progression during his service. CONCLUSION OF LAW A left knee disability was incurred in service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action on the claim that is addressed herein below, the Board finds that no further assistance in developing the facts pertinent to the that claim is required at this time. The Veteran contends that he had a preexisting left knee disability that worsened during his service. He also contends that his left knee disability was related to other service connected orthopedic disabilities. 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 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including degenerative joint disease, 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. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). When determining service connection, a presumption of soundness applies. 38 C.F.R. § 3.304(b). A Veteran is 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). While certain chronic diseases that are set forth in 38 C.F.R. § 3.309(a), including arthritis, are also generally subject to a presumption of in-service incurrence if manifest to a compensable degree within one year after active service, this does not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service treatment records show that at a physical performed in conjunction with his Reserve Officers Training Corps (ROTC) duties, the Veteran reported that cartilage had been removed from his left knee prior to service. There was no deformity and movements were normal at that time. He had a scar as a result of the prior surgery. There were no further complaints about the Veteran's left knee during his active service which ended in September 1988. However, after joining the Reserves he started having problems with his left knee and underwent surgery in May 1997. He was placed on a permanent profile after the surgery and was deemed to be not deployable as a result of multiple orthopedic problems including his left knee disorder. At his hearing, the Veteran testified that when he entered service, he was not having any problems with his left knee. He started to experience pain during physical training and eventually needed a second left knee operation. The Veteran submitted a statement from a private physician which stated that the Veteran's history of participation in parachute jumps, rappels, running in combat boots, and rucksack marches in service contributed to his bilateral knee arthritis. In November 2011, a VA examiner opined that it was less likely than not that the Veteran's left knee injury was related to his service. The examiner related the left knee pain to a fall during rucksack march in or around 1988. However, this event appears to have occurred during the Veteran's National Guard service, so this opinion is self-contradictory. In a May 2013 examination report, the examiner stated that it was at least as likely as not that the Veteran's left knee disability was aggravated beyond its normal progression in service. The pre-service meniscectomy predisposed the Veteran to develop knee problems, and, in addition to the natural progression of the disease, the stress of physical training in service aggravated the Veteran's left knee disorder. The examiner could not differentiate between the symptoms caused by the natural progression of the disorder versus the in-service aggravation. The Board finds that the evidence shows that it is at least as likely as not that the Veteran's left knee disability is related to his military service. A private physician opinion was that the Veteran's level of physical activity in the military contributed to his knee disorder. Additionally, the May 2013 VA examiner opined that the Veteran's preexisting left knee condition was aggravated by his service. The only medical opinion that did not find a relationship to service was the November 2011 examination report, which as noted above, was inconsistent; accordingly, the Board does not assing probative value to that opinion . Accordingly, considering the doctrine of reasonable doubt, the preponderance of the evidence supports service connection for a left knee disability. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a left knee disability is granted. REMAND The Board remanded this claim in February 2013 for medical opinions, including a medical opinion as to whether the Veteran's right ankle disability was related to his service or to a service connected disability. The examiner's opinion was inadequate to allow the Board to make a reasoned decision on the Veteran's claim. First, the examiner stated that he was unable to provide an opinion as to the etiology of the Veteran's right ankle disorder without resort to speculation because there were no service treatment records documenting a right ankle injury. However, there are other available sources of information about the Veteran's right ankle disorder, including post-service treatment records and the lay statements of the Veteran. Second, the examiner determined that the Veteran's right ankle disorder was not related to his other orthopedic problems because there was no documented postural instability secondary to his service connected orthopedic disabilities. However, a May 2006 VA podiatry examination report indicated an abnormal gait, including a lean to the right side. VA treatment records reflect a left antalgic gait in 2008. Notes as recent as May 2013 continue to reflect gait abnormalities. This throws the examiner's finding that there was no postural abnormality that could cause a right ankle disorder into question. Therefore, a new opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner addressing the following issues: a) In light of the documented medical history and lay statements provided by the Veteran, is it as least as likely as not (at least 50 percent likely) that the Veteran's right ankle disability was caused or aggravated by his active duty or National Guard service? B) In light of the documented abnormal gait, is it as least as likely as not (at least 50 percent likely) that the Veteran's other orthopedic disabilities, including degenerative joint disease of the bilateral knees, a left ankle disability, and a left foot disability, caused or aggravated the Veteran's right ankle disorder? The examiner must provide an adequate rationale for the conclusions which are expressed in the report. If the examiner is unable to provide the requested opinions without resort to undue speculation, he or she should explain why this is the case. It is insufficient to state that there are no service treatment records documenting a right ankle injury. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs