Citation Nr: 1335696 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-13 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a prostate disability. 3. Entitlement to service connection for right ankle rash. 4. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture, claimed as due to VA treatment. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In August 2009, the Veteran attended an informal conference with a Decision Review Officer at the RO in lieu of a hearing before RO personnel. The report from the informal conference is of record. In June 2012, the Veteran and his spouse testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The issues of entitlement to service connection for a prostate disability and for a right ankle rash are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. During the June 2012 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the claim for benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture, claimed as due to VA treatment. 2. The competent evidence of record is at least in equipoise as to whether the Veteran's current right knee disability is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee have been meet. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal During the June 2012 hearing before the Board, the Veteran and stated that he wanted to withdraw the claim on appeal for benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R §§ 20.202, 20.204(b) (2013). Withdrawal may be made by the Veteran or the authorized representative. 38 C.F.R. § 20.204(c) (2013). As the Veteran has withdrawn his appeal as to the issue of entitlement to service connection for benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture, there remains no allegation of errors of fact or law for appellate consideration concerning the issue. The Board, therefore, has no jurisdiction to review the Veteran's claim of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture and the issue is dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2013). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which include arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability as is contemplated under 38 C.F.R. § 3.303(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An April 1967 service treatment record shows that the Veteran had complaints of right knee problems. It was noted that the Veteran's knee problems seemed to be one of trauma on several occasions, with multiple sprains. The result was a weakened knee, which was noticeable to the Veteran. He had no pain and no trouble with knee swelling or locking. The diagnosis was noted as "?," with no treatment prescribed. A May 1967 service treatment record for an unrelated issue notes that some of the Veteran's previous medical records were lost in the Republic of Vietnam. The Veteran's April 1967 report of medical history on separation shows that the Veteran reported swollen or painful joints; history of broken bones; and bone, joint or other deformity. Several conditions were noted by an examiner, but none of them pertained to the right knee. VA medical records date from June 1971 show that the Veteran was involved in a motor vehicle accident. He sustained a midshaft fracture of the right femur and a laceration of the right knee with division of quadriceps mechanism and patellar fracture. He underwent a status post exploration and repair of the patellar tendon and partial resection of the patella. In the Veteran's December 2007 notice of disagreement, he acknowledged that the post-service car accident caused more damage to his right knee. However, he claimed that he had been having problems with his right knee since service. A February 2010 VA joints examination report shows that the VA examiner reviewed the claims file, noting that the Veteran's service treatment records noted that he was seen for complaints in the right knee, associated with several injuries or sprains. The Veteran stated that while in training, he was running down a ravine and fell into a tunnel that was dug by animals. He fell with all of his body weight, twisting his trapped ankle and knee. He reported that he was told he had a bad ankle sprain and that he actually had a torn meniscus in his knee on further evaluations. The Veteran stated that he was in Vietnam and worked as a cartographer. His knee did fairly well and he left the military without any surgery on the knee. The VA examiner also discussed the Veteran's post-service motor vehicle accident and injury to his right knee. The assessment was traumatic arthritis of the right knee. The examiner opined that the motor vehicle accident that occurred after the Veteran left active military duty had a significant impact on the development of the present condition. The examiner opined that it was more likely than not that the motor vehicle accident and fractured femur has had more result and direct contribution to the resulting traumatic arthritis today than did the injury while on active duty. The VA examiner further stated that it was difficult to say as to the contribution of each injury to the present condition of the knee, that is, the contribution of the injury while on active duty and then the contribution of the motor vehicle accident. If pressed to estimate that, the examiner would say that the active duty injury with the probable torn meniscus and the sprain of the knee, especially the medial collateral ligament, would contribute 30 percent to the present condition of the knee and the motor vehicle accident would contribute 70 percent to the present condition of the knee. In March 2012, the Veteran underwent a VA knee examination by the same examiner who performed the 2010 VA examination. He was diagnosed with Osgood- Schlatters condition, rheumatic fever causing swollen knees and other joints, and fractured patella and lacerated patella tendon from car wreck. The VA examiner noted that the 2010 VA examination provided a diagnosis of severe traumatic arthritis of knee with non-union of inferior pole of the patella. The VA examiner noted a review of the claims file, noting that there were no service treatment records to verify any treatments in service for any significant knee issues. The examiner noted the one entry where the Veteran was seen for a complaint of weakness and that he denied swelling of the knee and locking, which both would have been expected to be occurring with a torn meniscus. The VA examiner stated that if there had been a torn meniscus untreated in the knee, the Veteran would have been expected to have multiple episodes of pain, swelling, and locking, which he did not have. The examiner noted that the Veteran had severe injuries involving high speed, high energy damages to several areas post-service. The examiner also noted that from the Veteran's discharge until the time of the MVA, the Veteran worked as a surveyor and did not require any visits to a medical doctor. The examiner noted that x-rays revealed severe traumatic arthritis of the right knee. The Veteran only took Vicodin and had not seen an orthopedist for his knee since the severe injury. The VA examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury. The rationale was that there was no documentation in the service treatment records of any significant injuries or examination findings. The Osgood-Schlatters condition was a tendonitis condition which was age limited and subsided when a male reached complete skeletal maturity. The condition has no bearing on the condition of the knee today. Even if the Veteran had some mild sprains to the right knee, not recorded in the records, those would not have been expected to cause any permanent problems. In fact, the records did not show a continuum of knee problems with the Veteran during strenuous work as a surveyor for the four years prior to his crash into a tree which produced serious injuries to that knee. The examiner found that the right knee experienced severe force and trauma with a patellar fracture and laceration of the patellar tendon. That would be expected to have the greatest impact or causation into the resulting arthritis of the knee. During the June 2012 Board hearing, the Veteran provided testimony in which he reiterated prior assertions as to his knee injuries during service. He further stated that there were missing service treatment records as he went to the hospital during service for his right knee and left on crutches. In addition, he was on limited duty and there should have been a document in his records to that affect. The Veteran's spouse testified that she had known the Veteran since 1969 or 1970. She remembered the Veteran complaining that his knee got caught and that he had a fairly swollen knee, but that the Veteran was not a complainer. That was before the motor vehicle accident. Essentially, she testified that she observed the Veteran having problems with his knee prior to the post-service motor vehicle accident. In a June 2012 letter, a fellow service member stated that while in basic training he witnessed the Veteran hurt his knee when he stepped into a hole. He stated that the Veteran sprained his knee (which later turned out to be a torn meniscus in the knee) and a badly sprained ankle. The Veteran was taken from the training field and when he saw him a few days later he was on crutches. He stated that until graduation, the Veteran went places in a jeep or a truck while the rest of the unit ran or marched. At the graduation ceremony, the Veteran's knee was well enough for him to march. Later in time, he remembered the Veteran mentioning that he had pain in his knee, to include during their time in Vietnam. In reviewing the evidence, the Board is aware that the VA examiner has provided conflicting opinions, in that in 2010 the examiner attributed the Veteran's arthritis, in part, to his in-service knee injuries, but in 2012, found that the Veteran's current right knee disabilities were related to his post-service motor vehicle accident. However, the Board concludes that in this case, as it now stands, that the evidence is at least in relative equipoise as to whether the right knee arthritis is related to his active service. The VA examiner in 2010 considered that the Veteran sustained injuries to his right knee in service that, at least in part, resulted in the Veteran's current traumatic arthritis. The examiner accepted that the Veteran sustained injuries to his right knee of such significance in service to be related, in some part, to his current disability. The Board finds that opinion is supported by the service treatment records showing that the Veteran had knee problems due to trauma on several occasions consisting of multiple sprains. The Board also has heavily considered the fact that an April 1967 service treatment record sets forth that some of the Veteran's treatment records were lost in Vietnam. The Veteran's contentions of needing medical treatment for his right knee during basic training, which resulted in his being on crutches, is supported by the June 2012 buddy statement. Further, the Veteran's spouse has stated that she observed the Veteran having right knee problems prior to the post-service motor vehicle accident. The VA examiner who provided the 2010 and 2012 medical opinions did not have the opportunity to consider those statements and testimony. However, the Board finds that when considering that new evidence in light of the entire evidence of record, to include the 2010 medical opinion in which the VA examiner found that the Veteran's current right knee arthritis was at least, in part, due to his inservice knee injuries, that service connection is warranted. In sum, the Board finds that the pertinent evidence of record is in equipoise as to whether the Veteran's right knee arthritis is related, in part, to his active service. The Board finds that the Veteran is competent to report that his right knee symptoms began in service and the fellow service member is competent to report what he observed, the Veteran hurting his right knee, being taken for treatment, and returning on crutches. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Moreover, the Board considers the statements of the Veteran, his spouse, and the fellow service member to be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Specifically, the Veteran's service treatment records show that he received treatment for his right knee, and there is a clear indication that the Veteran had several instance of right knee sprains, at the very least. Although the record contains no medical evidence of right knee complaints until the post-service accident, the Veteran and his wife have provided competent lay evidence of record, consisting of credible assertions that the Veteran continued to struggle with right knee symptoms since discharge from service. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal on the claim of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a right knee fracture is dismissed. Service connection for a right knee disability is granted. REMAND A May 1967 service treatment record specifically notes that some of the Veteran's previous medical records were lost in the Republic of Vietnam. The Veteran's April 1967 report of medical history at the time of separation shows that the Veteran was treated for prostatitis in Vietnam for nine months in 1966. A March 2003 private medical record shows a finding that there was evidence of persistent prostatitis. In a December 2009 VA genitourinary examination report, the VA examiner opined that the Veteran's prostatitis was not caused by or a result of the condition of prostatitis in service. The rationale was that there was no current evidence of prostatitis on examination and no clinical record of any ongoing treatment for a prostate problem. However, service connection may be granted where a disability is shown at any time during the appeal, even if the most recent medical evidence is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA examiner did not consider the private medical evidence from March 2003 suggesting that the Veteran had persistent prostatitis. In addition, the Veteran has testified that he has had ongoing prostrate problems since service. In light of the above, the Board finds that the Veteran should be provided with a new examination that adequately addresses the nature and etiology of any prostrate problems. With regard to the Veteran's claim for service connection for a right ankle rash, an April 1967 service treatment record notes that the Veteran was seen for a fungus infection of the right foot. A November 2006 VA examination report shows that the Veteran has a mildly hyperpigmented area of the skin. There was no evidence of a rash at the time. The examiner opined that the right ankle hyperpigmentation was most likely secondary to the Veteran's ankle surgeries. The examiner was not able to state that the mildly hyperpigmented area was related to the fungal infection which occurred in service without resorting to mere speculation. Because the VA examiner was unable to provide the requested opinion without resorting to speculation, that examination amounts to nonevidence, neither for nor against the Veteran's claim because service connection may not be based on speculation or remote possibility. Bloom v. West, 12 Vet. App. 185 (1999); 38 C.F.R. § 3.102 (2013). In addition, during the June 2012 Board hearing, the Veteran testified that he was treated in Vietnam and privately after service for the right ankle rash and that everybody treated it as a fungus. He stated that it was still present in a slightly different form. In the summertime, it would weep and itch and that after using an over the counter ointment, it had transformed into a dry scaly presentation. The Veteran's wife also testified that she observed the rash on his right ankle shortly after the Veteran separated from service and since. As it remains unclear to the Board whether the Veteran has a right ankle skin rash related to his period of active service, the Board finds that a remand for an additional examination and opinion is necessary in order to fairly decide the merits of the Veteran's claim. Lastly, to ensure that the record before the examiners is complete, the Veteran should be provided another opportunity to provide information and evidence pertinent to the claims remaining on appeal. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. 2. Obtain any outstanding VA medical records identified by the Veteran and pertinent to the claims on appeal. 3. Schedule the Veteran for a VA examination by an examiner who has not previously examined the Veteran, to determine the nature and etiology of any prostate disability. The examiner must review the claims file and should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted and all findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current disability. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any prostate disability diagnosed had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner must consider any statement from the Veteran regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Any opinion expressed must be accompanied by a complete rationale. The examiner should specifically discuss and reconcile the service medical records showing that the Veteran had prostatitis, post-service medical evidence of possible persistent prostatitis, and the opinion provided by the VA examiner in December 2009. 4. Schedule the Veteran for a VA examination by an examiner who has not previously examined the Veteran to determine the nature and etiology of any right ankle rash. The examiner must review the claims file and should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted and all findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current disability. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any right ankle rash or skin disability diagnosed had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner must consider any statement from the Veteran and his spouse regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Any opinion expressed must be accompanied by a complete rationale. The examiner should reconcile the service medical records showing that the Veteran had a fungus in the right foot area, and the opinion provided by the VA examiner in November 2006. 5. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs