Citation Nr: 1331779 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-38 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from March 1954 to February 1957. The Veteran was also a member of the Tennessee Air National Guard, reportedly from 1965 to 1966 and from 1974 to 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Cleveland, Ohio, and St. Petersburg, Florida. In March 2013, the Board remanded the claims for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. Degenerative joint disease of the left knee is etiologically related to injury from parachute jumps in service. 2. Degenerative joint disease of the right knee is etiologically related to injury from parachute jumps in service. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left knee was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Degenerative joint disease of the right knee was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes the Veteran has been provided all required notice in response to the claims for service connection for left and right knee disabilities. In addition, the evidence currently of record is sufficient to substantiate these claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013) in regard to these issues. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that he has a bilateral knee disability as a result of his service in the United States Army during the Korean War. He states that his current knee problems are due to his service because he injured his knees during parachute jumps in 1954. At his Board hearing, the Veteran testified that he was assigned to jump school at Fort Bragg with the 82nd Airborne. He stated that he injured his knees during jumps, the right knee worse than the left knee. The Veteran also stated that he has experienced knee pain ever since service, but the problems became worse recently. He recalled that he did not seek treatment for his knee problems during service because he did not want to be removed from his duties. Thus, the Veteran contends that service connection is warranted for a bilateral knee disability. There are no official records documenting injury of the Veteran's knees. This is not surprising as his service treatment records from his period of active duty were likely destroyed in a fire and he has indicated that he did not seek treatment during service for his knee pain. Nevertheless, the Veteran's DD 214 documents that he served during the Korean War and he was awarded the Parachutist Badge. This award supports his statements that he performed parachute jumps during service. Additionally, the Veteran submitted a statement from fellow service member, J.B., in August 2009. J.B. stated that he served with the Veteran during jump school in 1954 and that the Veteran complained of pain in his knees. J.B. also stated that the Veteran did not go to sick call because he did not want to get kicked out. The Board finds no reason to doubt the credibility of the statements from the Veteran and J.B. regarding their recollections of events during service. Based on the information in the Veteran's DD 214 and the credible statements provided, the Veteran's contentions of in-service knee injury from parachute jumps are deemed consistent with the circumstances of his service and thus bilateral knee injury is established by the evidence. The Veteran was afforded a VA examination of the knees in December 2009. The examiner provided a diagnosis of bilateral osteoarthritis. A May 2013 VA examiner provided a diagnosis of degenerative joint disease of both knees. Additionally, a February 2013 total right knee arthroplasty operative report notes a diagnosis of right knee degenerative joint disease/osteoarthritis. Thus, the current disability element of both claims is established by the evidence. The question remaining for consideration is whether the Veteran's current left and right knee disabilities are related to the in-service injury from parachute jumps. The private medical evidence addressing the origin of the Veteran's degenerative joint disease of the knees supports the Veteran's claims. In February 2013, Dr. E.M.J. performed the total right knee arthroplasty. In the operative report, Dr. E.M.J. recorded a "many year" history of right knee pain. The Veteran reported that his symptoms began with a parachuting accident while in military service in 1954. He also reported that he had had intermittent right knee pain over the years, but the symptoms significantly worsened over the last several months. In March 2013, Dr. E.M.J. provided an opinion that the Veteran's right knee degenerative joint disease was most likely caused by or a result of a parachute injury. Dr. E.M.J. noted that there were no service records available to review because they were burned. Dr. E.M.J. explained that the Veteran reported that he landed on his right knee during a parachute landing in 1954 and that he has had right knee problems ever since. The Veteran's left knee was not expressly addressed. The VA medical evidence addressing the origin of the Veteran's degenerative joint disease is more equivocal or tends to weigh against the claim. After noting the Veteran's history of knee pain from in-service parachute jumps, the July 2009 VA examiner stated that he could not resolve the issue of whether the Veteran's bilateral knee osteoarthritis is related to his parachute jumps in service without resorting to mere speculation. This was so because there are no records of knee pain during service and approximately 50 years had passed between discharge from service and the first records of treatment. The examiner could not determine whether the current knee condition is just due to wear and tear over time versus the sequelae of a knee injury that occurred over 50 years ago. The May 2013 VA examiner on the other hand provided an opinion that the degenerative joint disease of the knees is less likely as not caused by or a result of his active duty including his parachute jumps. The examiner stated that there is no evidence of a chronic knee problem during service or for many, many years following separation. The examiner noted that the Veteran denied having knee problems during guard service after active duty. The examiner concluded that the knee condition today is age related as the Veteran was nearly 70 years old by the time he sought medical attention. Although the explanation for Dr. E.M.J.'s opinion is succinct, it is nonetheless supported by the evidence of record, including the lay evidence. The Board must consider all pertinent lay evidence in addition to all pertinent medical evidence. See 38 U.S.C.A. § 1154(a) (West 2002). The Veteran has provided hearing testimony and submitted multiple statements attesting to the fact that he has experienced knee pain ever since the injury from parachute jumps during service. Moreover, in 2009, the Veteran submitted several statements from his wife, sister and daughter who all recalled that they witnessed the Veteran experience knee pain for as long as they remember. Although the question of whether the Veteran's current left and right knee disabilities are related to the in-service injury from parachute jumps is likely too complex in nature for a lay person to comment on, the Veteran and his family's seemingly credible statements are supportive of Dr. E.M.J.'s opinion as it is based on the Veteran experiencing knee pain since service. The evidentiary value of the VA examiners' opinions is undermined by their lack of a consideration of the lay evidence of record. The December 2009 VA examiner indicated that the question of etiology could not be answered without resorting to speculation because there are no records of knee pain in service. However, as indicated above, there is lay evidence of knee pain in service. The examiner may have come to a different conclusion if the lay evidence was considered. Likewise, the May 2013 VA examiner found that there was no evidence of a chronic knee problem during service or for many, many years following separation. However, the statements from the Veteran and his family tend to show that there was chronic knee pain during service and since that time. Dr. E.M.J.'s opinion is medical expert opinion evidence in favor of the right knee claim that is not outweighed by the VA opinion evidence. Furthermore, although the left knee was not expressly discussed by Dr. E.M.J., the circumstances surrounding degenerative joint disease of the left knee appear to be identical to that of the right knee. At the least, this evidence raises a reasonable doubt as to whether the Veteran's current degenerative joint disease of the left and right knees is etiologically related to injury from parachute jumps in service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that the disabilities are in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Thus, the Board concludes that service connection for degenerative joint disease of the left and right knee is warranted. ORDER Entitlement to service connection for degenerative joint disease of the left knee is granted. Entitlement to service connection for degenerative joint disease of the right knee is granted. REMAND In March 2013, the Board remanded the claim for service connection for psychiatric disability, to include PTSD, for additional development. The Veteran was afforded a VA examination in May 2013. A VA psychologist provided an Axis I diagnosis of depressive disorder not otherwise specified (NOS). It was determined that the criteria for a diagnosis of PTSD were not met. A May 2011 VA examiner also found that the criteria for PTSD were not met. However, that examiner also provided a diagnosis of anxiety disorder NOS. In contrast, in March 2013, the Veteran's treating private physician, E.B., indicated that the Veteran has PTSD with recurrent nightmares. An opinion was provided that the PTSD was most likely caused by or a result of service in the Korean War. No further explanation was included. In view of this conflicting evidence regarding the Veteran's current psychiatric diagnosis, the Board finds it necessary to remand the claim for another VA examination to clarify the nature of the Veteran's current psychiatric disorders, including whether he meets the criteria for PTSD, as well as an opinion as to etiology. The evidence reflects that the Veteran has been prescribed Wellbutrin from a private physician, perhaps Dr. E.B. Private treatment records for psychiatric problems have not yet been requested and obtained in connection with this claim. On remand, the Veteran should be asked to identify his private treatment provider and the records should be obtained. Accordingly, this case is REMANDED to the RO or the Appeals Management Center in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain all available records pertaining to post-service treatment of the Veteran for any psychiatric problems. 2. Then, the RO or AMC should arrange for the Veteran to be scheduled for a VA examination by a psychiatrist or psychologist to determine the nature and etiology of all acquired psychiatric disorders present during the period of the claim. The VBMS claims file or a copy of the pertinent records therein must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify the Veteran's current psychiatric disorders, to include whether he meets the criteria for a diagnosis of PTSD. With respect to each acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to the Veteran's active service. Consideration should be given to the Veteran's statements regarding in-service stressors. His statements should be taken as credible. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, furnish the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the record is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified by VA, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs