Citation Nr: 1333007	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  08-32 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a left knee disorder, including as secondary to service-connected pes planus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board/BVA) is from January 2007 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appealed the denial of several service-connection claims, including for hypertension, pes planus (flat feet), and a right knee disorder.  In July 2008 the RO granted service connection for the right knee disability and pes planus and assigned disability ratings and effective dates for the awards.  The Veteran did not in response timely appeal any "downstream" issue, namely, by contesting those initial ratings and effective dates.  Therefore, those claims are no longer at issue.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).

The Board also sees however that, in August 2010, the Veteran's representative 
re-raised these claims, requesting higher ratings for these service-connected right knee and bilateral pes planus disabilities.  But the Board does not have jurisdiction to consider these increased-rating claims, so is referring them to the RO for appropriate development and consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO in the first instance).

In support of the remaining claims, the Veteran testified at a hearing at the RO in February 2011 before the undersigned Veterans Law Judge (VLJ) of the Board, which is often and more commonly referred to as a Travel Board hearing.


In April 2011, the Board remanded the claims of entitlement to service connection for hypertension and a left knee disorder for additional development that included obtaining additional treatment records and medical nexus opinions regarding the etiologies or origins of these disorders - particularly insofar as concerning their claimed relationship with the Veteran's military service, including by way of a service-connected disability.

In October 2011, on remand, the Appeals Management Center (AMC) granted service connection for hypertension and assigned a zero percent (noncompensable) rating beginning on May 30, 2006, and a higher 20 percent rating as of December 1, 2008.  And just as before, the Veteran did not in response separately appeal either these ratings or effective dates, so that claim also is no longer at issue before the Board.  Grantham, supra.

The VA compensation examination and medical nexus opinion obtained on remand in May 2011 was found inadequate regarding the additionally claimed left knee disorder, so in May 2013 the Board requested a medical expert opinion from the Veterans Health Administration (VHA) as to the etiology of this left knee disorder and potential relationship between it and the Veteran's military service.  In July 2013 an orthopedic physician designated to provide this opinion responded.  The Board then sent the Veteran and his representative a copy of the opinion in August 2013 and gave them 60 days to submit additional evidence and/or argument in response to it.  See 38 C.F.R. § 20.903 (2013).  The Veteran indicated on the Medical Opinion Response Form that he returned later in August 2013 that he had no further argument or evidence to submit, and that he wanted the Board to immediately proceed with the adjudication of his appeal.  The opinion is favorable to the claim, allowing for the granting of it, perhaps the reason the Veteran did not feel the need to provide any additional comment.



FINDINGS OF FACT

1.  The Veteran has presented competent, credible, and therefore ultimately probative lay evidence of a left knee injury in service.

2.  His left knee arthritis is as likely as not the result of that left knee injury during his service.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his left knee arthritis is the result of an injury incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126, prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326.

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his personal possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

Since the Board is granting this claim of entitlement to service connection for a left knee disorder, there is no need to discuss whether there has been compliance with the notice-and-duty-to-assist obligations of the VCAA.  This is because even were the Board to assume, for the sake of argument, there has not been, this would be inconsequential and therefore ultimately amount to nonprejudicial, i.e., harmless error since the Veteran is still receiving the requested benefit.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice and assistance errors are not presumptively prejudicial, even when shown to have occurred, rather, must be judged on an individual 
case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim).

Legal Criteria

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby beyond the condition's natural progression.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then a showing of continuity of symptomatology since service is required to support the claim for service connection.  38 C.F.R. § 3.303(b).  

Showing continuity of symptomatology since service, however, to alternatively establish the required linkage between current disability and service, is only available under § 3.303(b) for the conditions specifically identified as "chronic" under § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  That said, service connection may be granted on the basis of a post-service initial diagnosis of a disease if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Arthritis just so happens is one of the conditions identified in § 3.309(a) that is considered chronic, per se, and therefore subject to this continuity of symptomatolgogy pleading-and-proof exception provided by § 3.303(b).  And since a chronic condition according to § 3.309(a), arthritis also will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within the first year following the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption, however, is rebuttable by affirmative evidence to the contrary.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).


Analysis

In deciding this claim, the Board reviewed all of the evidence in the Veteran's claims file, both the physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends his left knee arthritis is directly related to an injury to this knee during his service or, in the alternative, was either caused or is being aggravated by his service-connected pes planus.  So his claim is predicated on both direct and secondary service connection.  Ordinarily, the Board is required to consider all potential basis of entitlement.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  Here, though, because the Board is granting the claim of entitlement to service connection on a direct-incurrence basis, that is, finding the current left knee disorder is a direct result or consequence of the claimed injury in service, there will be no discussion of the alternative theory of secondary service connection since unnecessary.

Through various statements and testimony, the Veteran asserted he was kicked in his knees while trying to qualify for rifle training in a squatting position.  He indicated he went to sick call once, but was warned to not seek treatment again.  See August 2007 and April 2010 statements and February 2011 Travel Board hearing transcript.  He maintained he would have been reprimanded and considered a malingerer if he continued to complain about his consequent disability, pointing out that soldiers often just have to suck it up and continue doing what they do.


Although his service treatment records (STRs) noted complaints of right knee pain, no such complaints were noted as concerning his left knee.  Nevertheless, he is competent to report any injury or symptoms he experienced.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Washington v. Nicholson, 19 Vet. App. 363 (2005).  In determining the credibility of lay evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  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).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Here, the Board found none of these factors present to question the credibility of his statements and hearing testimony, therefore, they are deemed probative.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

Hence, the first requirement of establishing his entitlement to service connection for this alleged disability is met - that is, he has established the occurrence of a relevant injury to this knee during his service.

February 2011 X-rays of his left knee address the second element of a successful service-connection claim, which is show he has this alleged disability.  The X-ray impression was osteoarthritis of the left knee, so there is no disputing he has it.  See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, requiring this objective X-ray confirmation.

So resolution of this claim ultimately turns on the third and final requirement of a successful claim, the so-called "nexus" requirement, requiring attribution of the present-day arthritis affecting this knee to the injury during his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Opinions have been offered concerning this determinative issue of causation, and some are favorable to the claim whereas others are not.  But the Board will resolve this reasonable doubt in the Veteran's favor and grant the claim since the opinions supporting the claim are as probative, indeed, if not more so, than those against the claim.  38 C.F.R. § 3.102.

At the conclusion of an August 2009 VA compensation examination, the physician provided a negative opinion based on the absence of documented left knee problems in service and the Veteran's long history of post-service employment working in the food industry on his feet.  Since, however, that evaluating physician did not also consider the comments regarding relevant injury in service and instead relied on the absence of evidence in the STRs, this opinion is inadequate.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).

Another VA compensation opinion was obtained in February 2011, and this examiner opined the Veteran has significant traumatic osteoarthritis of the left knee that is less likely than not related to his military service.  While this examiner acknowledged the Veteran's history of being kicked in the knees during service and his denial of a post-service civilian left knee injury, and deemed him credible, this examiner ultimately offered a negative opinion because there was a lack of evidence to support the claim in his assessment.  But, interestingly, the examiner also stated that age-dependent degenerative joint disease (i.e., arthritis) typically developed symmetrically in the contralateral joint, so that it was more likely than not that the Veteran's accelerated left knee arthritis had traumatic origin, meaning had resulted from a prior injury.  So the examiner offered a rationale that supported traumatic origin of the left knee arthritis but did not explain why it was unrelated to the Veteran's injury in service, which was apparently accepted as credible so having indeed occurred.  Therefore, even that additional opinion was found inadequate.

Therefore, to hopefully finally resolve this matter, the Board sought a VHA medical expert opinion to clarify the etiology of the Veteran's left knee disorder.  The orthopedist, in July 2013, also accepted the Veteran's injury in service as alleged and opined that it is as likely as not that the currently diagnosed left knee arthritis is service-connected, hence, the result of that injury.

Although the VHA medical expert opinion was not supported by any rationale and further development of the claim resultantly could be directed, the Board finds that the evidence as it stands is in relative equipoise.  In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case."  See Mariano, at 312.  But the Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009).  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas, at 26.


The Board does not however find this necessary in this particular instance.  There are unfavorable opinions that are equally inadequately supported by explanatory rationale, so subject to the same failings as the opinion that instead is supportive of the claim.  However, since the Veteran's injury in service was deemed credible, so for all intents and purposes as having occurred as alleged, since he is not shown to have sustained any additional left knee injuries since his service, and because the 2011 VA examining physician determined the left knee arthritis was likely traumatic in origin, the evidence on whole suggests the arthritis affecting this knee is as likely as not the result of the left knee injury in service, especially when considering the favorable VHA medical expert opinion.  The Board therefore is granting, rather than denying, this claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute ", "obvious" and "definite" causation are not required, just that this be an "as likely as not" proposition).  For the reasons and bases discussed, it is in this particular instance.


ORDER

The claim of entitlement to service connection for residuals of a left knee injury, including especially post-traumatic arthritis, is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs