Citation Nr: 1331319 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-06 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from January to August 1981 and from July 1982 to February 1984. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The service connection issue on appeal was reopened and remanded for additional development by the Board in June 2011. In June 2013, the Board remanded the issues on appeal to the RO for a new nexus opinion based on the applicable regulations related to aggravation and, if the service connection issue was granted, to obtain an examination to determine the effect of the service-connected disability on the Veteran's employability, if the RO could not determine this question from the evidence of record. A new opinion was obtained later in June 2013. Based on the above, there has been substantial compliance with the June 2013 remand instructions with respect to the service connection issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Chondromalacia patella of the right knee was noted on entrance for the Veteran's second period of active duty. 2. Chondromalacia patella of the right knee worsened in service and it is not clearly and unmistakable due to the natural progression of the disease. CONCLUSION OF LAW The criteria for the establishment of service connection for chondromalacia patella of the right knee due to aggravation are met. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis of the Claim With respect to the service connection issue on appeal, the Board is granting service connection for chondromalacia patella of the right knee, based on aggravation. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). The Veteran seeks service connection for a right knee disability due to service aggravation of a preexisting disorder. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1110, 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2013). If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, 38 U.S.C.A. § 1153 applies and the question becomes whether the disability worsened in service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation 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); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The presumption of sound condition on service entrance does not apply in this case because the Veteran's right knee disability was noted at entrance to his second period of service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The issue thus becomes whether the Veteran's pre-existing disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The Veteran's service treatment records reveal that although he reported knee pain prior to service, it was noted in January 1982 that he was able to run five miles a day and pursue full activity without knee pain; the impression in March 1982 was status post mild symptomatic bilateral chondromalacia patella, asymptomatic at present. The Veteran complained of right knee pain in service in July 1983, and recurrent chondromalacia was diagnosed. A December 1983 Medical Board report diagnosed chondromalacia patella of each knee, which existed prior to service and was not aggravated thereby. Chondromalacia patella was diagnosed several times post service, including in August 1984, September 2008, and November 2009. The Veteran testified at his July 2010 travel board hearing that his right knee pain started near the end of boot camp and that he was told by a doctor that his right knee disability is due to service. According to an August 2010 opinion from D. R. Cameron, M.D., the Veteran had chronic debilitating knee and back pain as a result of a fall in service, with his symptoms worsening over the previous year and aggravation passing the natural progression of the disorder. On VA evaluation in August 2011, the VA examiner diagnosed right knee strain 2011 and concluded that the disability was less likely as not caused by or the result of service injury because there was no evidence of chronic disability in service and after active duty; this examiner concluded in March 2012 that the Veteran's right knee was not aggravated by service because the Veteran was seen in service only for a laceration of the right knee after a fall in a submarine and there was no evidence of chronicity and repeated treatments in service for the right knee. This case was remanded by the Board in June 2013 for a new nexus opinion because the August 2011 opinion did not use the correct standard of proof, which is whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran's preexisting right knee injury was not aggravated by his military service. According to the resulting June 2013 physician's opinion, which is based on a review of the claims files, there is no clear and unmistakable evidence that the Veteran's preexisting right knee disability was not aggravated by his military service. The physician essentially notes that the Veteran, who had chondromalacia patella prior to his second period of service but was allowed to reenlist because he had no knee complaints and was able to run, had pain in the right knee a number of times during his second period of service. The Board notes although that a finding on whether service connection based on aggravation is warranted can be somewhat confusing because of the way the opinion must be framed, the June 2013 medical opinion is in favor of a grant because the opinion did not find clear and unmistakable evidence that the disability was not aggravated by service. Based on the above evidence, especially the June 2013 VA opinion, the Board finds that the Veteran's preexisting chondromalacia patella of the right knee has been aggravated beyond natural progression by his military service. Consequently, service connection for chondromalacia patella of the right knee due to aggravation is warranted for the approximate amount of disability caused by the aggravation. ORDER Entitlement to service connection for chondromalacia patella of the right knee, based on aggravation, is granted. REMAND When this case was remanded by the Board in June 2013 for a new opinion, it was directed by the Board that, if and only if, the RO determines that the Veteran is entitled to service connection for a right knee disorder, he was to be afforded a VA examination to determine the effect of his service-connected disorder on his employability, if the RO could not determine this question from the evidence of record. Because the RO denied service connection for a right knee disability in its July 2013 Supplemental Statement of the Case (SSOC), no evaluation of the effect of the Veteran's right knee disability on his employability was obtained. However, based on the Board's action above, an opinion on whether the Veteran's service-connected disability renders him unable to secure or follow a substantially gainful occupation is needed prior to Board readjudication of the issue of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should request that the Veteran submit an up-to-date VA Form 21-8940, Veterans Application For Increased Compensation Based On Unemployability, which will be added to the claims files. The Board notes the conflict in the evidence between the information provided by the Veteran in an April 2007 TDIU application, in which he lasted worked in February 1988 and had earned a maximum of $36,000 as a Navy Auditor, and the information in a March 2008 TDIU application, in which he last worked in 1990 and had earned a maximum of $289,000 as an insurance consultant. 2. After the above, the Veteran will be provided a VA evaluation by a medical professional to determine the effect of his service-connected disabilities including his right knee disability on his employability. The claims folder and a copy of this remand will be made available to the examiner in conjunction with the examination. The examiner must evaluate and discuss the effect of his service-connected right knee disability, as well as the effect as a whole of any additional service-connected disabilities granted, on his employability. The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disability or disabilities, without consideration of his non-service-connected disabilities and without regard to his age, render him unable to secure or follow a substantially gainful occupation. All findings and conclusions need to be supported by a rationale, and the examiner should reconcile the opinion with all other clinical evidence of record. 3. If the opinion or other evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, but he does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), then the claim must be submitted to the director of Compensation for a determination of entitlement to an extraschedular rating for TDIU. See 38 C.F.R. § 4.16(b). 4. The Veteran must be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. 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 (2013). 5. Thereafter, the Veteran's claim for TDIU will be readjudicated. If the benefit sought is not granted, the Veteran and his representative will be furnished with a SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs