Citation Nr: 1339830 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-10 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to September 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the claims file is currently held by the RO in Roanoke, Virginia. In January 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's virtual claims file. This case was previously before the Board in March 2013 and remanded for additional development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the issues. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issue of service connection for a bilateral knee disability was remanded and the RO granted service connection for a right knee disability in October 2013. The RO subsequently granted a 10 percent evaluation effective February 26, 2008 for right knee degenerative joint disease/limitation of flexion and a 40 percent evaluation effective August 26, 2013 for limitation of extension. The Veteran has not submitted a notice of disagreement relative to that decision; therefore, that issue is not currently before the Board. This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran has a history of asthma beginning during his active service. 2. Resolving all doubt in favor of the Veteran, the Veteran's left knee disability is reasonably shown to have had its onset during his active service. CONCLUSIONS OF LAW 1. Service connection for asthma is established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Service connection for a left knee disability is established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A. Service Connection for Asthma The Veteran's service treatment records indicate a history of asthma. The Veteran reported shortness of breath and wheezing in June 1977. Specifically, he reported trouble breathing during physical training. At the time, he thought it felt like asthma. He also reported that he did not smoke. The healthcare provider noted that the Veteran's breath sounded clear. However, the note further reported that "at [the] start of [the] screening session, [the Veteran] was experiencing respiratory discomfort and labored breathing was audible." The Veteran returned in October 1977 complaining of the same symptoms. At that time, he also reported that he sometimes experiences these symptoms while at rest. At his separation examination in July 1978, the Veteran reported a history of asthma and shortness of breath that was noted on the report. At his VA examination in May 2013, the Veteran reported that after service, the Veteran experienced shortness of breath "every now and then." He claimed that he was treated by civilian physicians and prescribed inhalers. The Board notes that the Veteran was unable to provide evidence of that medical treatment. However, there is a record of treatment of asthma in the VA treatment records. The Veteran has undergone two VA examinations. At the December 2009 examination, the VA examiner diagnosed interstitial lung disease. The examiner opined that "true asthma" was not currently present and was not present in service. At the May 2013 examination, the examiner diagnosed dyspnea and opined that the exact etiology was not clear. The examiner concluded that it was not as likely as not that the Veteran's current condition was related to service. The Board notes that the VA examinations weigh against the claim. However, the Board also reviewed the VA treatment records. For example, in August 2009 the Veteran presented at the Salem VA Medical Center (VAMC) to understand the future course of treatment for his asthma. At the time, he indicated that he had been receiving treatment from a non-VA source. He also reported that he was diagnosed with asthma during service. He described the symptoms as being a dry cough that is worse at night and feeling short of breath. He was prescribed albuterol, an oral inhaler, and told to use it as necessary. The record shows that the prescription for albuterol was refilled on several occasions, for example in October 2009 and February 2010. The Board notes the negative medical opinions; however, in evaluating the evidence of record, the Board concludes that service connection is warranted. There is a record of symptoms beginning during service and continuing to the present time. The service treatment records discussed above indicate that the Veteran suffered from shortness of breath since June 1977 and he has complained of symptoms since that time, including at the Salem VAMC since 2009. Despite the negative medical opinions, the Board concludes that the evidence weighs in favor of the claim. Accordingly, the Board finds that service connection is warranted for asthma. Reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). B. Service Connection for a Left Knee Disability The Veteran filed a claim for a bilateral knee disability. After the Board's March 2013 remand, the RO granted service connection for the right knee but continued to deny service connection for the left knee. The service treatment records show the Veteran suffered a right knee injury in May 1976. There is no record of a left knee injury in service. However, at the Veteran's separation examination in July 1978, the Veteran reported a "trick" or locked knee. The examination of the lower extremities showed mild "chondromalacia, bilateral." The Board notes that there are no medical records from the time of the Veteran's separation until 2006. There are private treatment records beginning in March 2006 that show a diagnosis of arthritis and bilateral knee pain. The private records also show limited flexion and extension in both knees. Later, the Veteran sought treatment from the Salem VAMC. For example, in November 2009, the Veteran presented complaining of bilateral knee pain. At his October 2008 VA examination, X-rays showed advanced degenerative joint disease in both knees. The examiner concluded that the Veteran's current disability was not caused by or a result of his military service, stating in part that a review of the claims file did not reveal any care for either knee in service. However, the Board notes that the service treatment records do indicate a bilateral knee condition mentioned at separation and a May 1976 injury to the right knee. Therefore, the issue was remanded for a second examination. A second examination was conducted in August 2013. The examiner diagnosed bilateral arthritis. The date of the diagnosis is given as "years ago while in the service." At the examination, the Veteran reported experiencing knee problems during service. The examiner ultimately opined that the right knee disability was related to service due to the in-service treatment report from May 1976. However, because there was no injury of the left knee during service, the examiner concluded that the left knee disability was not related to service. The Board notes that this seems to contradict the diagnosis provided earlier in the report of bilateral arthritis in the knees where the diagnosis was noted to have been given "years ago while in the service." That confusion does not affect the outcome of the Board's decision. The Board notes the negative opinions; however, in evaluating the evidence of record, the Board concludes that service connection is warranted. The evidence from the VA examinations and the private treatment records clearly show that the Veteran has a current left knee disability. The issue turns on whether there was a left knee disability during service. The Board finds that the Veteran reported knee problems during service and there is a diagnosis of bilateral chondromalacia. While there are no treatment reports between his separation and 2006 and there was no specific injury of the left knee noted in the service treatment records, bilateral chondromalacia was diagnosed in service and the Veteran complained of a knee condition at his separation examination. Based on this evidence, the Board concludes there was an in-service left knee condition. Accordingly, the Board finds that service connection is warranted for a left knee disability. Reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER 1. Entitlement to service connection for asthma is granted. 2. Entitlement to service connection for a left knee disability is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs