Citation Nr: 1334730 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-13 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran has confirmed active duty service from August 1967 to August 1973, and from May 1981 to August 1985. However, the Veteran reports service from August 1965 to August 1985; his August 1985 DD 214 indicates that the Veteran had 20 years of service prior to his separation in August 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO denied entitlement to service connection for bilateral hip and knee disabilities. This matter was previously before the Board in July 2011, at which time it was remanded for further development. The Virtual VA claims file has been reviewed. The issues of entitlement to service connection for a back disorder, a left ankle disorder, tinnitus, and arthritis of the hands have been raised by the record. The claims for tinnitus and arthritis of the hands have been previously referred to the RO. However, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a bilateral hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Degenerative joint disease of the left knee is attributable to service. 2. Degenerative joint disease of the right knee is attributable to service. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left knee was incurred in peacetime service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Degenerative joint disease of the right knee was incurred in peacetime service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service treatment records indicate that the Veteran was treated for chondromalacia of the knees in March 1979. In December 1981, the Veteran was treated for knee pain. The Veteran reported a history of bilateral knee arthritis; the examining provider noted the prior diagnosis of chondromalacia. Following an examination, the assessment was arthralgia of the knees, hips, and hands of an unknown etiology. A January 1982 follow up indicates that the Veteran's knee pain was reduced by medication; the treatment record stated that there was no evidence of arthritis or systemic disease. In October 1983, the Veteran complained of right medial knee pain. Following examination, the impression was medial collateral ligamentous inflammation; rest and an anti-inflammatory medication were prescribed. Reports of medical history and examination dated April 1969 through July 1985 indicate that the Veteran began complaining of intermittent knee pain at his October 1979 examination, and that it was not considered disabling. No diagnoses or deformities were noted, and the Veteran's evaluations of the lower extremities were normal. The Veteran's DD Form 214 indicates that the Veteran's military occupational specialty was master diver. Treatment records from the Hartford Medical Group indicate that the Veteran was treated for chronic bilateral knee pain in October 2004; the diagnosis was minimal degenerative joint disease. He was also treated for left knee pain in April 2006; the diagnosis was degenerative joint disease. A March 2007 letter from Dr. Everett indicates that the Veteran's arthritic changes are related to the Veteran's military service as a master diver. According to Dr. Everett, the heavy lifting and torque under water caused micro-trauma and deterioration of the knees. The Veteran was afforded a VA examination in May 2007. According to the report, the Veteran complained of pain and cracking sensation of his knees, without a history of injury. The Veteran reported that this pain has worsened over the past 10 years, and that he had not sought regular treatment for his knees. Following examination, and x-rays that showed mild degenerative changes, the diagnosis was mild arthritis of the knees. The VA examiner opined that the Veteran's arthritis of the knees was consistent with the Veteran's age and unrelated to his complaints in service. A July 2007 Veterans Benefits Administration (VBA) training letter on the medical consequences of diving indicates that divers are at risk for delayed arthritis, including compression arthralgia, as a result of external pressure on the joints due to the interference with joint lubrication caused by rapid compression. The VBA letter indicates that these conditions may or may not be reported in service treatment records, and that some, such as arthritis, do not appear immediately. Treatment records from Bay Street Orthopedics, dated in 2009 and 2010, indicate that the Veteran underwent an MRI of the right knee in June 2009, which showed intrasubstance tear of the anterior cruciate ligament, a tear of the posterior horn of the medial meniscus, and small osteochondral defect of the lateral femoral condyle. The MRI also showed degenerative spurring of the patella. In March 2011, Dr. Everett reiterated his 2007 medical opinion. In August 2011, the May 2007 VA examiner indicated that she reviewed the "Effects of the Master Diver" and reiterated that her opinion that the etiology of the Veteran's mild degenerative arthritis was his age. In an April 2013 letter from a VA nurse practitioner, she notes that the Veteran worked a deep sea diver during his Navy service and that it is believed that that his degenerative arthritis of the knees is at least as likely as not caused by his service. A May 2013 VA examination report indicates degenerative joint disease of the knees is less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner acknowledged the Veteran's in-service complaints of knee pain, but found that there was no permanent residual or chronic disability in the service medical records. The VA examiner also pointed out the absence of treatment from 1985 to 2004, when degenerative changes were first confirmed by x-ray. The Board finds that the medical evidence of record supports the Veteran's contention that his bilateral knee disorder is related to service. The Board finds that the Veteran's onset of degenerative joint disease of the knees manifested in service and has continued since that time. The Veteran was seen in service on multiple occasions for complaints of knee pain, and diagnosed with chondromalacia and arthralgia of the knees. Moreover, although the Veteran's current degenerative joint disease of the knees was not shown during service or within a year thereafter, the Veteran was treated on multiple occasions for knee pain, and reported it consistently at service examinations. In addition, the VBA training letter associates diving with delayed onset of arthritis and arthralgia of the joints, including knees, and both the VA nurse practitioner and Dr. Everett concurred that the Veteran's degenerative joint disease resulted from the Veteran's service as a diver. Likewise, the Veteran has been treated for his knees in the years since service. He also credibly reported a lengthy history of complaints and treatment for his knees. More importantly, this Judge finds the Veteran's report of an in-service onset to be credible, and supported by the evidence of record. Here, there is no rational basis to ignore the facts and the VA opinion is unconvincing. The VA opinion is not determinative as to whether his degenerative joint disease of the knees is etiologically related to his service and does not preclude service connection in this case. Therefore, the Board finds that service connection for degenerative joint disease of the right and left knees is warranted. ORDER Entitlement to service connection for degenerative joint disease of the left knee is granted. Entitlement to service connection for degenerative joint disease of the right knee is granted. REMAND Given that the Veteran's claim for service connection of a back disorder has not yet been adjudicated and the Veteran asserts that his bilateral hip disorder, variously diagnosed as bilateral hip pain and bilateral hip arthralgia, is either a manifestation of or secondary to his claimed back disorder, the Board finds that a decision on the Veteran's claim for service connection of a bilateral hip disorder must be deferred to allow the RO the opportunity to adjudicate Veteran's claim for service connection of a back disorder. Accordingly, the case is REMANDED for the following action: 1. The AOJ should place complete verification of all periods of service in the file (Virtual VA was reviewed). 2. After adjudicating the Veteran's claim for service connection for a back disorder, the RO should readjudicate the issue of entitlement of service connection for a bilateral hip disorder, to include as secondary to a back disorder. 3. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs