Citation Nr: 1336903 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 04-20 649A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for psoriatic arthritis, to include as secondary to service-connected left knee disability. 2. Entitlement to service connection for bilateral hip disability, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 4. Entitlement to an evaluation for left knee costochondritis desiccans with arthrotomy residuals (left knee disability) in excess of 20 percent. 5. Entitlement to higher initial evaluations for bilateral hearing loss disability, assigned a noncompensable evaluation prior to July 15, 2008, a 10 percent evaluation beginning July 15, 2008, and a 20 percent evaluation beginning May 30, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The record before the Board consists of electronic files known as Virtual VA and the Veterans Benefits Management System. The Veteran served on active military duty from March 1963 to February 1965. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the case in July 2009 and again in April 2011, including based on the Veteran's request first for a Travel Board hearing and then for a Board videoconference hearing. However, by a signed August 2011 submission, the Veteran withdrew his request for a hearing. The Board remanded the case again in April 2013 for additional development. The issues of entitlement to higher ratings for left knee disability and bilateral hearing loss are addressed in the REMAND that follows the ORDER section of this decision. As noted by the Board in the April 2013 remand, the issue of entitlement to service connection for psychiatric disability as secondary to the service-connected left knee disability was raised by the Veteran an April 2006 statement. The Board referred the claim to the originating agency for appropriate action. The record before the Board does not reflect that the originating agency has addressed this issue. Therefore, it is again referred to the originating agency for appropriate action. FINDINGS OF FACT 1. Psoriatic arthritis was not present until more than one year following the Veteran's discharge from service, it is not etiologically related to his active service, and it was not caused or permanently worsened by his service-connected left knee disability. 2. A left hip disability was not present until more than one year following the Veteran's discharge from service, it is not etiologically related to his active service, and it was not caused or permanently worsened by his service-connected left knee disability. 3. A right hip disability was not present until more than one year following the Veteran's discharge from service, it is not etiologically related to his active service, and it was not caused or permanently worsened by his service-connected left knee disability. 4. A right knee disability was not present until more than one year following the Veteran's discharge from service, it is not etiologically related to his active service, and it was not caused or permanently worsened by his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for psoriatic arthritis are not met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a left hip disability are not met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a right hip disability are not met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in letters sent in May 2003 and July 2009. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of any of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist has also been met in this case. The Veteran's service treatment records and identified VA and private medical records have been obtained to the extent possible. The Veteran has been afforded appropriate VA examinations in connection with the claims. The reports of the December 2009 and May 2013 VA examinations reveal that in addition to examining the Veteran, the examiners reviewed the Veteran's pertinent history. The examiners provided opinions concerning the etiology of the disabilities at issue. While the December 2009 examiner did not provide adequate rationales to support the opinions, the May 2013 VA examiner did provide such rationales. As discussed below, the May 2013 examiner explained that medical literature and the evidence of record did not support a link between a knee disability and causation or aggravation of disability of the other knee, or the bilateral hip, or psoriatic arthritis given several relevant medical factors present: absence of a 5-centimeter leg length discrepancy, multiple decades between the knee injury and development of mild bilateral hip arthritis, and development of psoriatic arthritis years after the left knee injury. The rationales, findings, and conclusions are adequate for the Board's adjudication, and sufficient to allow the Board to weigh them against contrary evidence. The Board also finds substantial compliance with development requirements of the Board's prior remands in July 2009, April 2011, and April 2013. The RO/AMC afforded the Veteran required VCAA notice, obtained relevant evidence from VA and private sources, afforded the Veteran opportunities to address his claim via requested hearings (which requests were effectively withdrawn by a signed August 2011 submission), obtained required VA examinations, and readjudicated the claims with issuance of supplemental statements of the case. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any additional evidence that could be obtained to substantiate the claims. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of the claims, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also 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), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran's service treatment records show that he was seen in March 1964. Old trauma of the left knee, with loose bodies was noted. Degenerative joint disease in the left knee was diagnosed. The service treatment record reflect treatment arthritis in the joint and a note a "trick" knee. On the service separation examination in December 1964, a left medial knee surgical scar was found but the lower extremities and skin were otherwise found to be normal. Nonetheless, in-service treatment records from June 1964 to January 1965 note left knee difficulties. The Veteran's post-service treatment records reflect a history of difficulty with various joints, beginning years following service, including morning stiffness, as well as treatment for arthritis including diagnosed plaque psoriasis and psoriatic arthritis. There is no indication in these records that any of the disabilities at issue are related to the Veteran's active service. The record of a disability examination dated in December 1982 notes that the Veteran had undergone left knee surgery for torn medial cartilage in 1964. The disability examiner found lesions of the lower trunk, elbows, and knees, which the examiner diagnosed as psoriasis. The examiner also assessed a history of joint pains possibly secondary to arthritis. Upon a June 1999 dermatology evaluation, a history was recorded of the presenting condition persistent for twenty years. The dermatologist diagnosed moderate plaque psoriasis. Private treatment records in 2004 reflect care following an assessed right knee contusion. A psychologist's disability assessment report dated in August 2005 notes a history of skin psoriasis beginning three years following service separation. Similarly, a rheumatology clinic treatment record notes a history of psoriasis since 1968, with worsening joint pains in multiple joints including the knees and hips in the past three to five years. The Veteran was then diagnosed with suspected psoriatic arthropathy of the hands, bilateral subtrochanteric bursitis, and osteoarthritis/chondrocalcinosis of the knees. Upon A VA compensation examination in December 2005, the examiner pertinently diagnosed trauma to the left knee necessitating arthrotomy, left knee degenerative joint disease likely due to the in-service trauma and arthrotomy, and psoriasis with arthritis affecting multiple joints. Upon a VA examination in December 2009 addressing the Veteran's claimed bilateral hip disability, right knee disability, and psoriatic arthritis including of these parts, the examiner noted that the Veteran only injured his left knee in service, and that injury to these claimed other parts was not reflected in the service records. The examiner also noted that the Veteran did not have a skin disorder in service. He observed that while the Veteran's bilateral hip pain did not have a known etiology, the Veteran's right knee disorder had been diagnosed as pseudogout with mild medial compartment arthrosis. The examiner further noted that the medical field had not identified precise causes of psoriatic arthritis and psoriasis, though genetic, immunologic, and environmental factors appeared likely. The examiner then opined that it was not at least as likely as not that the Veteran's claimed psoriatic arthritis and his bilateral hip and right knee disabilities were caused or aggravated by his service-connected left knee disability. Upon VA examination in May 2013, the examiner reviewed the Veteran's records and conducted an examination addressing the left knee and other implicated joints, and also opined that it was not at least as likely as not that the Veteran's left knee disability caused or aggravated a right knee disability or bilateral hip disability. Addressing the right knee, the examiner explained that the weight of medical literature was against disability of one knee causing or permanently aggravating disability of the other knee (right knee in this case) beyond its nature progress in the absence of a greater than five centimeter discrepancy in leg length. Because the Veteran had no leg length discrepancy currently or in the past, the examiner concluded that the weight of the evidence was against such causation or aggravation. The examiner concluded that the greater likelihood in this case was that the right knee disability was as an age-related degenerative condition and due to his psoriatic arthritis. The May 2013 examiner also considered the bilateral hip disability. The examiner found mild degenerative joint disease to be present in both hips, and noted that the record reflected that these degenerative conditions had not been shown until over four decades following the Veteran's development of a chronically symptomatic left knee disability. The examiner found that the weight of the medical literature was against such a chronic knee disability having caused or aggravated a mild degenerative joint condition in both hips four decades after onset of the knee disability. The examiner concluded that the weight of the evidence favored these hip conditions having been caused by age-related degeneration and the Veteran's psoriatic arthritis. The May 2013 examiner also opined that neither the Veteran's psoriasis nor his psoriatic arthritis was caused or aggravated beyond normal progression of these diseases by either the Veteran' left knee disability or the in-service fall injury that resulted in the left knee disability. The examiner explained that the medical literature reflected that such was not the nature of causation or aggravation as associated with psoriasis or psoriatic processes. Rather, the literature reflected that the documented progression association between the degenerative diseases and trauma began with active connective tissue disease, followed by trauma or injury to a joint, which was then followed by increased inflammation and psoriatic arthritis symptoms occurring during the acute healing phase following the injury and "before symptoms return to baseline." The examiner further explained that for this progression to result, the psoriasis must precede the injury. Thus, the chronology in this case, with the injury to the left knee occurring in service in 1963, but the Veteran's psoriasis not developing until three years after service separation, ruled out any such link, based on causation or association, between the injury to knee disability and the psoriasis or psoriatic arthritis. As the May 2013 examiner further noted, the Veteran's service separation examination was negative for any skin condition. Carefully weighing the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claims. Service and post-service records do not show that any of these claimed disabilities was present until multiple years following service, and do not support injury to the hips or right knee in service. The Veteran has also not asserted injury or the presence these disabilities in service or within the first post-service year. Therefore, service connection is not warranted for any of the disabilities on a direct or presumptive basis. The Board has also carefully considered the question of secondary service connection for these claimed disabilities. However, the Veteran has been afforded two VA examinations addressing questions of causation or aggravation by the Veteran's service-connected left knee disability. Both examiners provided opinions against the claims. As discussed above, the May 2013 examiner provided a detailed rationale for his opinions. There is no contrary medical opinion of record. The Board notes the Veteran's assertions of such causation or aggravation by left knee disability. While he might sincerely believe that his psoriatic arthritis, bilateral hip disabilities, and right knee disability were caused or aggravated by his service-connected left knee disability, as a lay person he is not competent to provide opinions concerning these matters requiring medical expertise. Accordingly, these claims must be denied. In reaching these decisions, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Entitlement to service connection for psoriatic arthritis, to include as secondary to service-connected left knee disability, is denied. Entitlement to service connection for left hip disability, to include as secondary to service-connected left knee disability, is denied. Entitlement to service connection for right hip disability, to include as secondary to service-connected left knee disability, is denied. Entitlement to service connection for right knee disability, to include as secondary to service-connected left knee disability, is denied. REMAND At the VA examination in July 2013 addressing the Veteran's left knee disability, the Veteran reported that he had daily flare-ups lasting three to four hours each. He further stated that these flare-ups were precipitated by his walking more than two blocks or standing more than 30 minutes. Despite this predictability and frequency, the examiner concluded that it was "not feasible" to conduct an examination of the Veteran's left knee during such an episode of flare-up. The Board disagrees and concludes that the Veteran should be afforded another VA examination to determine the current degree of severity of his left knee disability. Remand for an additional audiology examination is required because the examiner in July 2013 failed to address the impact on daily activities including employment of the Veteran's bilateral hearing loss despite making findings clearly showing disabling hearing loss. In response to this question of impact on daily activities including work, the July 2013 examiner simply replied, "No." In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any more recent VA records. 2. Then, afford the Veteran an examination by an examiner with sufficient expertise to determine the nature and severity of his left knee disability. The examiner should review the Veteran's pertinent history (either the electronic record or a copy of the pertinent records therein). The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include an assessment of the functional impairment during flare ups. This could be facilitated by requesting the Veteran to stand for 30 minutes prior to the examination or to walk two blocks prior to the examination since he alleges that these activities cause flare-ups. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected left knee disability on his ability to work. The rationale for each opinion expressed must also be provided. 3. The Veteran also should be afforded an audiology examination to determine the current degree of severity of his bilateral hearing loss. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. The examiner must address the impact of the Veteran's hearing loss on his daily activities, including particularly on his ability to work. The rationale for each opinion expressed must also be provided. 4. Undertake any other indicated development. 5. Thereafter, readjudicate the remanded claims. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs