Citation Nr: 1332386 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 06-32 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include osteoarthritis, patellofemoral pain syndrome, and chondromalacia, and to include as secondary to the service-connected residuals of a left knee sprain. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to October 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied the benefits sought on appeal. In a June 2005 Notice of Disagreement (NOD), the Veteran initiated appeals with respect to the denial of his increased rating claims for the service-connected recurrent dislocation of the right shoulder, service-connected degenerative disc disease, L5-S1, and the service-connected hemorrhoids. A Statement of the Case (SOC) was issued in September 2006 and the Veteran perfected his appeal with respect to these claims in an October 2006 VA Form 9. Subsequently, Supplemental SOCs (SSOCs) were issued with respect to these issues in June 2007, June 2010, and July 2011. Then, in a July 2011 statement, the Veteran indicated that he wished to withdraw his appeal with respect to the issues of entitlement to an increased disability rating for the right shoulder disability and for hemorrhoids. He further indicated that an award of a separate 10 percent disability rating for the right lower extremity radiculopathy would satisfy his appeal with respect to his claim for an increased rating for his low back disability. The 10 percent separate disability for radiculitis of the right lower extremity was awarded in a July 2011 rating decision. Accordingly, these issues are no longer on appeal. Thus, the only issues currently on appeal before the Board are those service connection issues identified on the title page. The Veteran testified at a hearing before the undersigned in January 2012. A transcript of that hearing is of record. In June 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. The Veteran sustained chondromalacia of the right knee during his active military service; there is medical evidence of record that shows that the Veteran's patellofemoral pain syndrome and chondromalacia of the right knee present during the course of the appeal period is a continuing disease process of chondromalacia of the right knee noted in service. 2. There is medical evidence of record that shows that the Veteran's currently diagnosed early osteoarthritis of the right knee is due to a nonservice-related factor (age and senescence). CONCLUSIONS OF LAW 1. Service connection for patellofemoral pain syndrome and chondromalacia of the right knee is established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. Service connection for osteoarthritis of the right knee is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In October 2004 and June 2012 VCAA letters sent to the Veteran, the RO/AMC provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA. The 2012 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Veteran's claim was last readjudicated in a December 2012 supplemental statement of the case. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file includes private and VA treatment records. Also, the Veteran was afforded another VA examination in July 2012 pursuant to a Board remand directive. The Board finds that the report on the examination is adequate as the examiner reviewed the claims file, considered the contentions of the Veteran, examined the Veteran, and provided a supporting rationale for the opinion rendered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Veteran was also provided an opportunity to set forth his contentions during a 2012 Board hearing. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 23 Vet. App. 488 (2010). In regard to the first duty, during the hearing, the undersigned enumerated the issues on appeal. In regard to the second duty, relevant testimony was elicited from the Veteran and thereafter appropriate development was conducted. Thus, the obligations under 38 C.F.R. 3.103(c)(2) were met. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant treatment he received for his disability, and providing testimony at the Board hearing. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the June 2012 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Service Connection The Veteran seeks service connection for a right knee disorder. The Veteran contends that he incurred a right knee disorder as a result of his active military service. Specifically, he contends that his current knee disorder developed as a result of strenuous active duty requirements, including frequent jumping from tall heights and running long distances. To establish direct service connection, the record must contain: (1) evidence of a current disorder; (2) evidence of in-service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Here, as noted above, the first element of service connection requires medical evidence of a current disorder. At a VA joints examination in November 2004, the Veteran was diagnosed with patellofemoral pain syndrome of the right knee. At a July 2012 VA examination, the Veteran was diagnosed with osteoarthritis of the right knee. The Board notes that at the July 2012 VA examination, the VA examiner found that the Veteran did not have a current diagnosis of patellofemoral pain syndrome of the right knee, and instead diagnosed the Veteran with osteoarthritis of the right knee. However, as the Veteran had a current diagnosis of patellofemoral pain syndrome at the November 2004 VA examination, following the filing of his service connection claim in September 2004, the Veteran has met the requirement for a current disorder. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) ("current disability" requirement for service connection satisfied by establishing disability at the time of filing or during the pendency of the claim). Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires evidence of in-service incurrence or aggravation of an injury or disease. A review of the Veteran's service treatment records (STRs) reveal that in June 1979, he complained of having water on the right knee and a grinding feeling in the right knee. He reported that his right knee was painful when bending and that he had a history of fluid buildup on the knee five years before. On examination, he complained of discomfort on abduction and on palpation of the patella. An edema was observed when the leg was straight, but not when the knee was bent. He was assessed with having a fluid build-up of the right patella. Further evaluation revealed tenderness of the pre-patellar tissue and a diagnosis of bursitis. Later, in February 1984, the Veteran sought treatment for right knee pain for the past 24 hours. He reported incurring a sharp pain in the right knee after completing a one mile run the day before. He stated that running or climbing stairs aggravated the disorder and that he felt a dull pain otherwise. Examination revealed a sharp pain when his knee was positioned and pulled forward. His knee was also found to have a popping sound. The Veteran was assessed with having chondromalacia patella of the right knee. The Veteran's active military service ended in October 1991. The Veteran has satisfied the second element of service connection. The Veteran's post-service treatment records reveal that he underwent a VA examination in December 1991, in connection with his prior service connection claim for a left knee disorder. At that time, he was found to have the same range of motion in both knees, flexion extending from zero to 130 degrees. No further findings were made with respect to the right knee. An October 1994 examination of the Veteran's knees, performed at the Texas Rehabilitation Commission, revealed full motion with no effusion or instability of his knees. Only subjective tenderness was noted. He later underwent a VA orthopedic examination in June 1998. At that time he reported having a gradual onset of problems in both knees in the late 1980s. He complained of a current dull aching type pain in his knees. He was noted to have anterior knee pain, which was diagnosed as being retropatellar pain syndrome and felt to be due to chondromalacia patella. He reported that constant pounding on hard surfaces exacerbated his anterior knee pain in both knees, but that his right knee was somewhat more symptomatic than his left knee. X-rays taken of his knees revealed no significant abnormalities. He was diagnosed with bilateral knee pain secondary to patellofemoral chondromalacia. Both of the Veteran's knees were examined again during a February 1999 VA orthopedic surgery examination. At that time he was diagnosed with mild to moderate bilateral chondromalacia patella. Subsequent private treatment records dated in November 2004 from Well Med Medical Management, P.A., reveal that the Veteran complained of ongoing right knee pain. No diagnosis was made at that time. Other evidence of record reveals complaints of bilateral knee pain many years prior to the Veteran's current claim for service connection for right knee disorder in September 2004. In a September 1993 disability report in connection with a claim for benefits administered by the Social Security Administration (SSA), the Veteran reported that his disabling condition included problems with his knees. In a November 1994 letter attached to a previous Substantive Appeal, the Veteran indicated that he had problems with both knees and that he felt as if the tibia and fibula were riding on each other (i.e., as if the synovial cavity were empty, providing no cushion whatsoever). In connection with his current service connection claim, the Veteran was afforded a VA joints examination in November 2004. During the examination, the Veteran reported that his right knee pain was constant and that his right knee would buckle, lock, and give way, but that he did not have swelling. On examination, the examiner noted no edema, effusion, weakness, redness, or heat in the Veteran's knee. He further noted minimal loss of anatomic landmarks. The Veteran reported right knee lateral patella pain to digital pressure. The examiner diagnosed patellofemoral pain syndrome of the right knee without subluxation or instability. In June 2012, the Board remanded the Veteran's claim for a VA addendum opinion. In particular, the Board noted that the Veteran was diagnosed with chondromalacia patella of the right knee in service, and that he has post-service diagnoses of chondromalacia patella and patellofemoral pain syndrome of the right knee. Thus, the Board asked the VA examiner to opine as to whether the Veteran's post-service diagnoses of chondromalacia patella and patellofemoral pain syndrome of the right knee were separate and distinct from the in-service chondromalacia patella of the right knee or represented a continuing disease process. Upon remand, the Veteran was afforded a VA joints examination and medical opinion in July 2012 to determine the etiology of his current right knee disorder. Following a review of the claims file, the VA examiner determined that chondromalacia patella, patellofemoral pain syndrome, and retropatellar pain syndrome are all interchangeably terms used for early patellofemoral degenerative disease. The examiner stated that chondromalacia of the patella is a softening of the cartilage behind the patella, and is usually accompanied by a degree of fissuring and fibrillation of the cartilage. Therefore, in summary, the examiner indicated that any of those terms would support a continuing disease process. In summary, the Veteran was diagnosed with chondromalacia patella of the right knee in service. He has post-service diagnoses of chondromalacia patella and patellofemoral pain syndrome of the right knee. Based on the July 2012 VA examiner's medical opinion, the Board finds that the post-service chondromalacia patella and patellofemoral pain syndrome of the right knee are interchangeable terms and support a continuing disease process of chondromalacia patella of the right knee noted in service. Thus, service connection for chondromalacia patella and patellofemoral pain syndrome of the right knee is warranted. The other diagnosed condition of the right knee-early osteoarthritis, however, has been attributed by the July 2012 VA examiner to a nonservice-related factor (age and senescence). Thus, the arthritic condition of the right knee is not caused by service or service-connected disability, and there is no showing that the arthritic condition of the right knee has accelerated beyond its normal progress. Accordingly, service connection for osteoarthritis of the right knee is not warranted. ORDER The claim for service connection for patellofemoral pain syndrome and chondromalacia of the right knee is granted. Service connection for osteoarthritis of the right knee is denied. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claim can be properly adjudicated. Hypertension Claim Recently, in June 2012, the Board remanded this claim to the RO/AMC for, in pertinent part, a VA medical opinion. Upon remand, the Veteran was afforded a VA examination and medical opinion in July 2012. Upon a review of this medical opinion, the Board finds the VA medical opinion to be inadequate. Specifically, on VA examination in July 2012, following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that the Veteran's current hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that an extensive review of all service records revealed no evidence of hypertension. The examiner noted that in 1980, the Veteran checked hypertension on a questionnaire, but the examining physician stated that this was not born out of the record. The July 2012 VA examiner found that hypertension was not checked on later questionnaires. However, as correctly stated by the Board in its remand, relevant complaints were documented in the Veteran's STRs in April 1986 and August 1986. The claims file does not contain any mention of a 1980 questionnaire, and the examiner does not refer to the documented 1986 complaints in his report. This action was specifically requested by the Board in its remand. Therefore, the examiner's medical opinion was based on erroneous facts and is thus inadequate. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this claim must again be remanded for the RO/AMC to obtain an addendum. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall ask the original July 2012 VA examiner to provide an addendum opinion (or another suitable examiner if unavailable). The Board previously requested that the examiner address the complaints and findings noted in service treatment records dated in 1986 but this was not done. The examiner is again asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed hypertension is etiologically related to the Veteran's service. In providing this opinion, the examiner should address the complaints and findings noted in the Veteran's STRs (including those noted in April 1986 and August 1986) and post-service treatment records, as well as the Veteran's lay statements. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. If the examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so. 2. Thereafter, review the claims file to ensure that the foregoing requested development has been completed in full. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Finally, readjudicate the Veteran's claim on appeal. If any claim remains denied, provide the Veteran and his representative with a SSOC, and after they have had an adequate opportunity to respond, return any such issue to the Board for further appellate review. 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). These claims 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. 2013). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs