Citation Nr: 1332866 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-27 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right wrist disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971, June 1980 to September 1980, February 1991 to May 1991, and from May 2002 to June 2003. He also had reserve service totaling nearly 30 years, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case was previously before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board for additional development in September 2011 and March 2013 and is now ready for appellate review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. During INACDUTRA, the Veteran sustained injuries to the right wrist and left knee. 2. The Veteran and individuals who served with him have presented credible and competent statements attesting to in-service incurrence of right wrist and left knee injuries consistent with the circumstances of the Veteran's service, and the Veteran has presented credible and competent statements describing continuity of symptomatology from such injuries from service to the present time. 3. The weight of the positive and negative medical evidence as to whether at least a portion of any current degenerative joint disease in the left knee or right wrist is etiologically related to service is in relative balance. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, degenerative joint disease in the left knee and right wrist were incurred as a result of service. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for degenerative joint disease in the left knee and right wrist is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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 term "active military, naval, or air service" includes: ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as arthritis) listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption 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 do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). A Veteran is presumed to be in sound condition when examined and accepted into service, except for defects or disorders noted when examined and accepted for service or where clear and unmistakably evidence establishes that the injury or disease existed before service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); See Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1989 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. A preexisting disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a preexisting condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The presumptions with respect soundness at entrance to service and aggravation do not apply to periods of INACDUTRA or ACDUTRA. Biggins, supra. Temporary or intermittent flareups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). For combat Veterans, such as the Veteran in the instant case, whose DD Form 214s from his second two periods of active duty during periods of war document infantry duty with a Special Forces unit, the provisions of 38 U.S.C.A. § 1154(b), which provide a relaxed evidentiary standard of proof to determine service connection, are applicable in this case. See Collette v. Brown, 82 F.3d 389 (1996). For such Veterans who have engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. When, as here, service treatment reports (STRs) are missing, VA has a heightened duty to consider the applicability of the benefit of the doubt rule to assist him in developing his claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that it has reviewed all of the evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Summarizing the pertinent evidence with the above criteria in mind, the complete STRs are not of record despite multiple attempts to obtain them, to include as directed by the Board in the September 2011 remand. Such efforts have included contacting official government repositories of military records, including the National Personnel Records Center. Also contacted was the headquarters of the Veteran's special forces unit to which he was last attached (the 20th Special Forces Group, Airborne) and a negative reply from this unit was received in May 2005. It is not clear if every development action requested in the September 2011 remand has been accomplished and/or whether additional efforts to obtain STRs would be fruitful were the case to again be remanded; however, given the completely favorable dispositions of the Veteran's claims herein, the Board will not further delay the adjudication of the appeal by this highly decorated Veteran who has provided decades of service-with great risk to his life and injury to his body-to his country. With respect to the right wrist, the STRs that have been secured include reports from a medical history collected in conjunction with a July 1974 examination that noted a history of the Veteran fracturing his right wrist when he fell from a tree when he was 11 years old. However, there was said to be no sequelae from the fracture at that time and no current disability then associated this condition. Also of record is a Statement of Medical Examination and Duty Status, coincident with a time period in which episodes of INACDUTRA are documented by official service department personnel records, dated in October 1983 indicating that the Veteran sustained a fracture after putting his right hand out to stop his fall after a parachute jump. It was specifically indicated therein that this injury was incurred in line of duty. A March 1984 STR, referencing this October 1983 injury, indicated that the injuries included a fracture to the styloid. An STR from the Veteran's last period of active service dated in July 2002 also referenced the 1983 injury and reflected a description of extreme pain in the right wrist at that time and an assessment that included right wrist pain associated with posttraumatic degenerative joint disease. Also of record from the Veteran's last period of active service is a May 2003 post deployment medical assessment that reflected a discussion of the prior injury to the right wrist and a "deployment concern" that the Veteran's right wrist did not at that time rotate correctly. A medical certificate dated in April of (apparently) 2004 reflects the Veteran reporting a "re-injury" to the right wrist while serving in Afghanistan. Finally, August 2004 STRs reflect complaints of right wrist pain and an assessment of a sprain in the right wrist after the Veteran slipped on the wet surface of a boat during an airborne operation, striking the right side of his body, to include the right wrist. With respect to the left knee, the record reflects a Statement of Medical Examination and Duty Status, coincident with a time period in which episodes of INACDUTRA are documented by official service department personnel records, dated in November 1981 indicating that the Veteran sustained injuries that included one to his left knee following a night combat equipment parachute jump. It was specifically noted therein that these injuries were incurred in line of duty. February, March, and April 1982 STRs reflect treatment for the left knee, with the February 1982 STR indicating "no improvement" and an April 1982 STR noting that the Veteran described his knee as being only "60 percent" better. The previously referenced medical certificate apparently dated in April 2004 also reflects the Veteran reporting a history of a left knee injury and an arthroscopy by a private physician. From the above, as well as from statements submitted by the Veteran and individuals who served with him in the Special Forces, it is well within reason to conclude that the Veteran sustained injury, or injuries, to the right wrist and left knee during a period of qualifying service. In this regard, in addition to the descriptions of the Veteran with regard to the in-service injuries in question in multiple statements, the record reflects an October 2008 statement from an individual who indicated that he was the senior medic for the operation performed by the Veteran's Special Forces Unit on the a night in October 1983 in which the Veteran sustained injuries that included involvement of the right wrist, and this individual stated that such injuries included a fracture to the right wrist. Also of record are September and October 2006 statements from individuals reporting that they served with the Veteran's Special Forces Unit attesting to being aware of "numerous" injuries sustained by the Veteran. These individuals reported that the Veteran participated in over 100 airborne operations, many at night as combat equipment jumps. The above statements are consistent with the nature of the Veteran's service, to include as a paratrooper, while serving as an infantryman while on Special Forces operations. 38 C.F.R. § 1154(b). These statements also lend credibility to the Veteran's competent complaints concerning right wrist and left knee pain from service to the present time, and while the positive and negative evidence in this regard is somewhat in conflict, there are statements by medical professionals that have the effect of linking current disability in the right wrist and left knee to service. Such "positive" evidence includes, but is not limited to, a December 2005 statement by D.S.S., M.D, who, after noting the in service injury to the right wrist and current problems the Veteran had with such actions as using keys or taking change out of his pocket, rendered an impression of "[s]tatus post multiple traumas in line of duty," clearly intending therein to conclude that there is current right wrist disability due to one of the these in-service "traumas." An August 2007 memorandum from medical officers affiliated with the Veteran's Special Forces unit also clearly was completed with the intent of linking current right wrist and left knee injuries to service. Also of record is an October 2007 statement from T.B. M.D., linking current left knee disability, to include pain, decreased motion, and a meniscal tear (shown by an October 2005 VA Magnetic Resonance Imaging of record) to service. This statement also linked current right wrist disability, manifested as decreased mobility secondary to arthritic changes, to service. Finally, as the VA examiner who completed an addendum opinion in August 2013, after rendering a negative opinion in this regard in July 2013 as well as following her initial examination of the Veteran in November 2012, made reference to the service department records documenting the 1981 left knee injury and stated that if this injury occurred "during military service," it would be at least as likely as not that the Veteran sustained a knee injury during military service. As such, and given the fact that the left knee injury clearly occurred during a period of qualifying military service (INACDUTRA), the Board views the August 2013 memorandum as positive nexus evidence with respect to the left knee. While the Board acknowledges the negative opinions following the November 2012 VA examination and July 2013 addendum finding that left knee and right wrist degenerative joint disease currently demonstrated were not incurred in or aggravated by service, and the further negative opinion in this regard with respect to the right wrist in August 2013, these opinions do not in the Board's view place the weight of the negative of record in excess of that of the positive medical evidence, some of which has been highlighted above. In short, while it may be the case that some portion of the Veteran's current right wrist disability is related to his fracture as a boy, and that some portion of a current left knee disability may be unrelated to his service, it would be unreasonable to find-given the positive evidence in this case-that the preponderance of the evidence demonstrates that there is no portion of current right wrist and left knee disability that is the result of service. Unless the preponderance of the evidence is against a claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, Cromer supra. From the above, it cannot be said that the preponderance of the evidence is against the claims for service connection for right wrist and left knee disabilities; as such, all reasonable doubt has been resolved in the Veteran's favor, and service connection for each disability is warranted. Id. Cromer, supra. ORDER Service connection for degenerative joint disease in the right wrist is granted. Service connection for degenerative joint disease in the left knee is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs