Citation Nr: 1331949 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-30 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disability, to include arthritis. 2. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. 3. Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from June 1983 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO confirmed and continued the denials of the Veteran's claims in a February 2006 rating decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in December 2010 before the undersigned. A copy of the transcript has been associated with the claims file. In January 2011 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The issues of entitlement to service connection for a left knee disability and asthma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDING OF FACT The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has arthritis of the right knee that began during active service or is related to an incident of service. CONCLUSION OF LAW Arthritis of the right knee was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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, 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. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran was diagnosed with arthritis of the right knee in May 1989, more than one year following her discharge from active duty. Although presumptive service connection is not warranted in this case because arthritis first manifested more than one year after service, the first element of a direct service claim is satisfied. Hickson, 12 Vet. App. at 253; see also 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has consistently reported that during basic training, she fell and hurt her right knee on an obstacle course. Her service treatment records (STRs) reflect that in July 1983, she complained of trauma to the right knee while performing a confidence course. She was diagnosed with bruises on her legs and had no further treatment. The second element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253. The Veteran has asserted that her right knee manifested in service and that she has experienced symptoms continuously since that time. Her currently diagnosed right knee arthritis is a chronic condition as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is applicable in this case. 38 C.F.R. § 3.303(a), (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Further, she has consistently reported having knee trauma in service, beginning as early as December 1986, when she informed a private physician that she had trauma to her right knee during basic training. She also reported right knee pain with a history of trauma during basic training in August 1989. At her December 2010 hearing, the Veteran's testimony was consistent with her previous reports of right knee trauma. Although there is a gap in her medical records from the 1990s through approximately 2004, the Board finds the Veteran's assertions regarding her in-service trauma and continuity of symptoms credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In December 1986, approximately three years after separation from service, the Veteran sought treatment for right knee pain that increased with exercise. She reported trauma to her right knee in basic training. The physician's impression was suspected patellofemoral syndrome. Also in December 1986, x-rays were taken of her right knee. There was no evidence of chondrocalcinosis but narrowing was "suspected" in the medial compartment. The impression was apparent narrowing of the medial compartment that "could be" degenerative, involving the meniscus. In April 1988, the Veteran was in a motor vehicle accident after which she complained of right knee pain. She was diagnosed with right knee strain, but there is no record of further treatment for this condition. In May 1989, the Veteran sought single level housing on a military base due to her right knee disability. Her request was accompanied by a statement from her doctor showing that she had right knee arthritis. In August 1989, she complained of right knee pain and reported a history of knee trauma during basic training. The private treatment records from the mid to late 1980s support the Veteran's assertion that she had problems with her right knee shortly following separation. There is a large gap in her treatment records from approximately 1990 to 2004. However, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. The private medical records from the 1980s provide probative evidence in support of her claim. In March 2011, the Veteran underwent a VA examination. She reported that in 1983, she injured her knees while performing an obstacle course during basic training. The examiner diagnosed osteoarthritis of the right knee and opined that it was not caused by service. The examiner noted that there was nothing in the claims file to contradict the Veteran's report of her in-service fall. However, the examiner noted that the Veteran sustained a right knee strain in a motor vehicle accident. The examiner opined that as a result, her current right knee disability was not related to service. It does not appear that the examiner considered the evidence from December 1986, prior to the Veteran's motor vehicle accident. This evidence shows that she had problems with her right knee prior to the April 1988 accident. The opinion of the March 2011 examiner is less probative than the medical records from the 1980s and the Veteran's competent, credible reports of continuity of symptoms. Service connection is warranted in this case. Although further medical inquiry could be undertaken towards development of the claim, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Service connection for arthritis of the right knee is granted. Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). ORDER Service connection for arthritis of the right knee is granted. REMAND With regard to her left knee disability, the Veteran asserts that her currently diagnosed mechanical arthralgia of the left knee was caused by her now service-connected right knee disability. At her March 2011 VA examination, the examiner provided a conclusory negative etiology opinion that "...the [V]eteran's left knee condition was not caused by or the result of residual[s] or activities that occurred during military service." No rationale was provided, rendering the examination and opinion inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A supplemental opinion is needed so that the examiner may provide opinions for both direct and secondary service connection accompanied by adequate rationales. With regard to the Veteran's asthma claim, her STRs indicate that her asthma pre-existed service and that she was discharged for this condition because it prevented her from completing basic training. At her March 2011 VA examination, the examiner concluded that the asthma "clearly ... existed prior to service," and that "... the [V]eteran reported these symptoms prior to service." The examiner therefore concluded that the Veteran's asthma was unrelated to service. The examiner noted that the Veteran had respiratory symptoms prior to service and that they were the same symptoms she reported during basic training. The "...only difference is that during military training, the symptoms were more frequent and pronounced because the [V]eteran was participating more in the activity of running which precipitated the symptoms." However, the examiner did not provide an opinion regarding whether the Veteran's asthma was aggravated beyond its natural progression during service. A supplemental opinion is needed so that the examiner may provide an opinion regarding aggravation of a pre-existing condition. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the March 2011 knee examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has a left knee disability that had its onset or was aggravated during active service; or, if arthritis is diagnosed, manifested to a compensable degree within one year of active service; or is otherwise related to any incident of service; or whether it was caused or aggravated by her service-connected right knee disability. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) If a new examination is deemed necessary, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether the Veteran's left knee disability (1) began during active service; (2) is related to any incident of service; or (3) if arthritis is diagnosed, began within one year after discharge from active service; or is (4) proximately due to; or (5) aggravated (permanently worsened) by her service-connected right knee disability. d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided. 2. Return the Veteran's claims file to the examiner who conducted the March 2011 asthma examination. The purpose of the examination is to determine whether the Veteran has asthma that had its onset or was aggravated during active service; is otherwise related to any incident of service; or existed prior to service and was aggravated by service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) If a new examination is deemed necessary, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether the Veteran's asthma began during active service; is related to any incident during active service; or existed prior to service and was aggravated by service. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." d) After reviewing the record, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to each of the following questions: i) On the basis of the clinical record, can it be concluded as medically undebatable that the Veteran's asthma pre-existed her entry into active military service? ii) If it is found as medically undebatable that her asthma did clearly pre-exist service, can it also be concluded as medically undebatable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? iii) If asthma is not found to have so pre-existed service, did it have its onset during active military service? e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. A complete explanation for such a finding must be provided. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs