Citation Nr: 1332192 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-25 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for gastrointestinal reflux disease (GERD). 2. Entitlement to service connection for a disability of the right knee. 3. Entitlement to service connection for a disability of the left knee. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Dr. C.B. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In March 2010, the Veteran testified at a Board hearing before the undersigned in Washington, DC. A transcript of the hearing has been associated with the claims file. In a November 2010 opinion, the Board reopened the claims at issue and remanded them for further development. In August 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran VA medical examinations of his claimed disabilities. The action specified in the August 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's GERD had onset in service. 2. The Veteran's right knee disability is related to an injury in service. 3. The Veteran's left knee disability is related to an injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gastroesophageal reflex disease (GERD) have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may 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) (2013). GERD With respect to the Veteran's claim for GERD, service treatment records include a March 1980 private treatment record, dated almost four years prior to the Veteran's entrance into active service in January 1984, showing that the Veteran was diagnosed with chronic cholecystitis and underwent a cholecystectomy and operative cholangiogram with complete relief of gastrointestinal symptoms. At the time, she had experienced right upper quadrant pain associated with intolerance to foods, mostly fatty foods, and with nausea and occasional vomiting. However, no current gastrointestinal disability was noted at the time of the Veteran's enlistment physical in June 1983. An August 1985 service treatment record reflects that the Veteran was seen for complaints of nausea, vomiting, headache, and back pain. At that time, she reported taking Pepto-Bismol. In the Veteran's December 1986 Report of Medical History, she indicated having a history of frequent indigestion. However, her separation examination in December 1986 and associated Report of Medical History do not note any current gastrointestinal disability. Post-service, the Veteran's current VA treatment records reflect a diagnosis of GERD in October 2005. Private medical records show a diagnosis of GERD and hiatal hernia in 2004. In support of her claim, the Veteran submitted a December 2008 private medical evaluation from Dr. C.B. In the evaluation report, Dr. C.B. states that he has reviewed the Veteran's service treatment records and post service medical records and has also interviewed the Veteran. He noted that the Veteran had gastric distress while in service and was prescribed Pepto Bismol. He opined that the Veteran's GERD was due to her gastric distress in service as the two processes often occur simultaneously. Dr. C.B. relies heavily on the Veteran's own lay assertions and gives great weight to his use of Pepto Bismol in service to treat nausea and vomiting Finally, Dr. C.B. associates the Veteran's current GERD with the Veteran's gastric distress in service because gastric distress and GERD may often share a common cause- increased gastric acid. At her March 2010 hearing, the Veteran claimed that she began experiencing daily indigestion approximately a year after enlistment, which she treated with over-the-counter medications such as Pepto Bismol and Tums. In May 2011, the Veteran was afforded a VA medical examination. At that time, she claimed that she was diagnosed with "acid reflux" and "indigestion" during her active military service. She further claimed that the symptoms she experienced in service were different than those associated with her pre-service chronic cholecystitis. Regarding the etiology of the Veteran's GERD, the examiner simply stated that the Veteran's GERD was less likely as not caused by or a result of active military service as there was no nexus between GERD and active military service. No explanation for this conclusion was provided. In September 2012, the Veteran was afforded another VA examination. The Veteran again reported that her GERD began in service, but also told the examiner that she was not diagnosed and treated for GERD until 2000, approximately fifteen years after separation from service. The VA examiner opined that is less likely than not that the Veteran's current GERD symptoms are related to the Veteran's active military service. She explained that there is no indication that the Veteran experienced chronic gastric symptoms following her cholecystectomy; rather the evidence reflects that the Veteran's gastrointestinal complaints resolved following her surgery. A veteran who served during a period of war, or after December 31, 1946, will be 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 evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2011). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. Here, no gastrointestinal disability was noted at the time of the Veteran's enlistment examination, and she was deemed within normal limits. Accordingly, the Veteran is presumed to have been in sound condition at that time. While the pre-service evidence consisting of a March 1980 private treatment record showing that the Veteran was diagnosed with chronic cholecystitis and underwent a cholecystectomy and operative cholangiogram could be considered clear and unmistakable evidence of a pre-existing disability, the Board finds that in light of the conflicting medical opinions discussed above, there is no clear and unmistakable evidence that the Veteran's disability was not permanently aggravated by her active military service, particularly given the inservice evidence of gastric distress and Pepto Bismol use. Thus, the presumption of soundness is not rebutted. The Board finds the evidence of inservice gastric complaints coupled with his lay testimony and the positive opinion from Dr. C.B. supports the claim. This aforementioned evidence is evenly balanced with the negative VA opinions. Giving the Veteran the benefit of the doubt, entitlement to service connection for GERD is granted. Right Knee With respect to the Veteran's claim for a right knee disability, the Veteran's service treatment records reflect that in February 1985 she reported a one-year history of pain in the right knee which started after she fell during basic training. It was noted that she had a bump in the right knee. She was diagnosed with Osgood-Schlatter's disease and put on profile for two weeks. The Veteran's December 1986 separation examination is negative for any noted right knee disability. Post service, a March 2005 private MRI report revealed a meniscus tear in the right knee. At the March 2010 Board hearing, the Veteran stated that she has experienced pain in her right knee ever since her period of service but did not seek treatment right away as she did not have medical insurance. Post-service, a March 2005 private magnetic resonance imaging (MRI) report showed a meniscus tear of the right knee. Asserting that there is no other plausible etiology of the Veteran's right knee disability, Dr. C.B. found that it was caused by the Veteran's military service. In May 2011, the Veteran was afforded a VA examination. The Veteran described onset of a bilateral knee disability in 1984 after she fell in a ditch in full gear weighing approximately 100lbs and landed on her knees. With regard to the Veteran's knees, the examiner stated that her current degenerative joint disease of the bilateral knees was less likely as not caused by or a result of active military service because it "can be a normal finding" at the Veteran's age. However, this opinion does not address or account for the Veteran's recurrent knee problems during active service, as discussed in the Board's November 2010 remand. In this regard, the Veteran injured both knees during service, was put on medical profile, was treated several times for knee pain, and was diagnosed with Osgood-Schlatter's disease of both knees. In September 2012, the Veteran was afforded another VA examination. The examiner concluded that it is less likely than not that the Veteran's current osteoarthritis and meniscus tear were caused by or related to a fall in service in 1984. As rationale, she noted that osteoarthritis is often associated with overuse, as well as the aging process, and a meniscus tear is a common knee injury that is more common in adults over forty and in women. However, the examiner again failed to address the Veteran's in-service complaints or explain why the Veteran's current disability is more likely the result of the normal aging process than an in-service injury. The Board notes that there is evidence both for and against a finding that the Veteran's right knee disability had onset in service. On one hand, an injury to the right knee in service is documented in the Veteran's service treatment records, as are complaints of chronic right knee pain, and the Veteran has a current knee disability. However, no disability of the right knee is noted at separation from service and there is no evidence of a right knee disability for many years after service. Additionally, there are conflicting VA and private medical opinions. Dr. C.B. has associated the Veteran's current right knee disability with her active military service, while the VA examiners have attributed the Veteran's current disability to wear and tear or the normal aging process. The Board notes that none of the medical opinions of record are ideal, with Dr. C.B.'s opinion insisting that the only possible cause of the Veteran's current disability must be her in-service injury, while the VA examiners have focused exclusively on age or overuse as a cause of the Veteran's disability and have failed to consider the Veteran's in-service injury. In light of this conflicting evidence, the Board finds that evidence is approximately in equipoise concerning the most likely etiology of the Veteran's right knee disability. Accordingly, the Veteran is afforded the benefit of the doubt and entitlement to service connection for a right knee disability is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Left Knee With respect to the Veteran's claim for a left knee disability, in a January 1985 service treatment record it was noted that she had a bump on her left knee which had been present for one year. She was diagnosed with a possible cyst. In February 1985 she reported pain in her left knee which had been present for one year after she fell in basic training. It was again noted that she had a bump in the left knee. She was diagnosed with Osgood-Schlatter's disease and put on profile for two weeks. In a June 1986 service treatment record, the Veteran reported proximal left leg pain that had been present for one and a half years after prolonged marching. It was noted that the Veteran had a moderately severe contusion to the same area two years earlier. The Veteran was diagnosed with pes anserine bursitis. In July 1986 the Veteran reported recurrent swelling of the medial left knee with soreness after running. An August 1986 service treatment record reflects that the Veteran again reported left knee pain and was diagnosed with mild recurrent pes anserine bursitis. She put on medical profile for ten days. The Veteran's December 1986 separation examination reflects a diagnosis of bursitis of the left leg. After service, a March 2005 private MRI report showed a possible meniscus tear, an osteochondral defect, and multi-locular cysts likely related to posttraumatic or degenerative changes. The December 2008 private medical evaluation by Dr. C. B. concludes that the Veteran's left knee disability was related to her military service because of the in-service injury and follow-up complaints and the March 2005 MRI showing a meniscus tear in conjunction with the fact that there was no other plausible etiology of this disability. In May 2011, the Veteran was afforded a VA examination. The Veteran described onset of a bilateral knee disability in 1984 after she fell in a ditch in full gear weighing approximately 100 pounds and landed on her knees. With regard to the Veteran's knees, the examiner stated that her current degenerative joint disease of the bilateral knees was less likely as not caused by or a result of active military service because it "can be a normal finding" at the Veteran's age. However, this opinion does not address or account for the Veteran's recurrent knee problems during active service, as discussed in the Board's November 2010 remand. In this regard, the Veteran injured both knees during service, was put on medical profile, was treated several times for knee pain, and was diagnosed with Osgood-Schlatter's disease of both knees. In September 2012, the Veteran was again afforded a VA examination. The examiner concluded that it is less likely than not that the Veteran's current osteoarthritis and meniscus tear were caused by or related to a fall in service in 1984. As rationale, she noted that osteoarthritis is often associated with overuse, as well as the aging process, and a meniscus tear is a common knee injury that is more common in adults over forty and in women. However, the examiner again failed to address the Veteran's in-service complaints or explain why the Veteran's current disability is more likely the result of the normal aging process than an in-service injury. The Board notes that there is evidence both for and against a finding that the Veteran's left knee disability had onset in service. On one hand, an injury to the left knee in service is documented in the Veteran's service treatment records, as are complaints of chronic left knee pain, and the Veteran has a current knee disability. A disability of the left knee is noted at separation from service. On the other hand, there is no evidence of a left knee disability for many years after service. Additionally, there are conflicting VA and private medical opinions. Dr. C.B. has associated the Veteran's current left knee disability with her active military service, while the VA examiners have attributed the Veteran's current disability to wear and tear and the normal aging process. The Board notes that none of the medical opinions of record are ideal, with Dr. C.B.'s opinion insisting that the only possible cause of the Veteran's current disability must be her in-service injury, while the VA examiners have focused exclusively on age or overuse as a cause of the Veteran's disability and have failed to consider the Veteran's in-service injury. In light of this conflicting evidence, the Board finds that evidence is approximately in equipoise concerning the most likely etiology of the Veteran's left knee disability. Accordingly, the Veteran is afforded the benefit of the doubt and entitlement to service connection for a left knee disability is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for GERD is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs