Citation Nr: 1332094 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-38 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left knee arthritis. 2. Entitlement to service connection for gouty arthritis of the right foot. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Veresink, Patricia INTRODUCTION The Veteran served on active duty from March 1997 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). After the initial response was received, in June 2013 requested that the VHA specialist provide an addendum to his report. In August 2013, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided them a copy of the opinion and indicated that they were entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In a signed August 2013 statement, the Veteran responded that he had no further evidence or argument to present, and in September 2013, his representative offered written argument in support of the appeal. As such, the Board will proceed with the consideration of his case. The issues of entitlement to service connection for a right knee disability and a left foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee arthritis had its onset in service. 2. The Veteran's right foot gouty arthritis manifested during service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee arthritis have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for right foot gouty arthritis have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for left knee arthritis and right foot gouty arthritis. As this represents a complete grants of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service Connection - Left Knee Arthritis The Veteran contends that he has left knee arthritis that was caused or aggravated by his in-service weight gain or sleep apnea. The Veteran was diagnosed with left knee arthritis in June 2008. In service, the Veteran was placed in a weight control program prior to separation from service. The Veteran has credibly stated that during this time he was required to perform significant amounts of aerobic exercise, which caused pain and swelling in his knees. The Veteran was separated for weight control failure. A VHA specialist provided a nexus opinion in June 2013 with an addendum in August 2013. The examiner noted that in March 1997, the Veteran had a body mass index of about 30 to 31, which is considered borderline between overweight and obese. At his discharge in February 2000, the Veteran had a body mass index of 33 to 34, which was in the obese category. The examiner acknowledged that the development of arthritis is multifactor and without a major injury it is difficult to determine the direct cause of the Veteran's arthritis. Obesity will place a person at risk for arthritis. The examiner opined that it is as likely as not that the Veteran's obesity caused or contributed to his developing knee arthritis. In the August 2013 addendum, the examiner specifically noted that the Veteran's left knee disability was caused or aggravated by his in-service weight gain. Based on this evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that his knee arthritis is causally related to his weight gain during service. Therefore, service connection for left knee arthritis is warranted. Service Connection - Right Foot Gouty Arthritis The Veteran contends he has right foot gouty arthritis that began during service. In October 1999, the Veteran presented with complaints of tenderness and pain in his right foot little toe tip. The examiner diagnosed cellulitis/ingrown nail. The Veteran returned a few days later complaining of continuing pain in his toe whenever he runs. The examiner diagnosed foot pain. September 1999, November 1999, and December 1999 in-service laboratory reports show high uric acid levels. Post-service VA treatment records show a diagnosis of right foot gouty arthritis is October 2008 and September 2010. The Board requested a VHA opinion regarding the relationship between the Veteran's gout and his service. The opinion was provided in June 2013. At that time, the examiner noted that records do not show a diagnosis of gout prior to service. The examiner also noted that it is most common to have the great toe of the foot affected from gout. The Veteran's complaints during service were around the lateral portion of his foot and around the small toe. He also acknowledged that high uric acid levels do not necessarily confirm the diagnosis but are very common in the setting of gout. The examiner found that as the patient is now treated for gout in his right foot, he had high uric acid levels during his service, and he did have foot pain during service, in his opinion it is more likely than not that the Veteran's gout began in service. Based on this evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's gout had its onset during service. Therefore, service connection for right foot gouty arthritis is warranted. ORDER Entitlement to service connection for left knee arthritis is granted. Entitlement to service connection for gouty arthritis of the right foot is granted. REMAND In light of the Veteran's competent and credible assertions that he experiences pain in the right knee and left foot, in addition to the grants of service connection for left knee arthritis and gout of the right foot, the Board finds that a VA examination is necessary to determine if the Veteran has a current right knee or left foot disability that is causally related to the Veteran's service or to his service-connected left knee and right foot disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service right knee and left foot disabilities, as well as any medical evidence addressing whether his service-connected left knee and/or right foot disabilities caused or aggravated any right knee or left foot disability. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Appropriate action should be taken to obtain and associate with the file any outstanding VA treatment records. All attempt to obtain such records should be documented in the claims file. 3. Schedule the Veteran for a VA examination to determine whether the Veteran has a current right knee or left foot disability. After reviewing the claims file and relevant electronic treatment records and examining the Veteran, the examiner should provide a diagnosis for any current right knee or left foot disability and (if a current diagnosed disability of the right knee or left foot exists) answer the following questions: a.) Is it at least as likely as not that any right knee or left foot disability found to be present is related to or had its onset in service? The examiner should include an opinion regarding whether the Veteran's weight gain in service caused or aggravated the Veteran's disabilities. b.) Is it at least as likely as not that any right knee or left foot disability was caused by or aggravated by the Veteran's currently service-connected left knee arthritis and right foot gouty arthritis. If aggravation is found, the examiner must note the baseline level of severity of the disability prior to aggravation by the service-connected left knee or right foot disabilities. A rationale must be provided for any opinion expressed. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why the opinion cannot be provided without resort to mere speculation. All findings and conclusions, supported by a rationale, should be set forth in a legible report. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why the opinion cannot be provided without resort to mere speculation. 4. After the development requested above has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs