Citation Nr: 1340937 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-02 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left knee disorder, claimed as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a right ankle and foot disorder, to include as secondary to a service-connected right knee disability. 3. Entitlement to an initial rating in excess of 30 percent for traumatic arthritis of the right knee, status post total knee arthroplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1980 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois. On his January 2010 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge seated at the RO. Such a hearing was scheduled for April 2012; however, the Veteran did not appear. In a subsequent November 2013 statement received from his representative, the Veteran indicated he no longer desired a hearing, and wished his appeal to be adjudicated by the Board. The issues of service connection for a right foot/ankle disorder and an increased rating for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran did not sustain a disease or injury of the left knee during active duty service. 2. Arthritis of the left knee did not manifest to a compensable degree within a year thereafter. 3. Symptoms of a left knee disorder were not chronic in service. 4. Symptoms of a left knee disorder have not been continuous since service separation. 5. The Veteran has a current diagnosis of traumatic arthritis of the left knee. 6. The Veteran has been awarded service connection for traumatic arthritis of the right knee, status post total knee arthroplasty. 7. The traumatic arthritis of the left knee is neither caused by or permanently worsened in severity beyond a normal progression by the traumatic arthritis of the right knee, status post total knee arthroplasty. CONCLUSION OF LAW The criteria for service connection for a left knee disorder, including as presumed as incurred in service or as secondary to a service-connected right knee disability, have not been met. 38 U.S.C.A. §§ 101, 1112, 1131, 1137, 5103, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In July 2005, January 2006, March 2006, April 2006, November 2006 and February 2007 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, initial VCAA notice was provided the Veteran prior to the rating determination on appeal; therefore, no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, his lay contentions, and various VA treatment records. As will be discussed below, VA attempted to obtain on several occasions, without success, the Veteran's service treatment records. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes that the heightened duty to assist has been met. The RO drafted a May 2006 memorandum for the record documenting VA's attempts to obtain the service treatment records. Additionally, via an April 2006 letter, the Veteran was informed of the unavailability of the service treatment records. The Veteran was himself able to obtain some of these records and has provided VA with copies of the records he obtained. Finally, the Veteran was afforded a VA medical examination in October 2007. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of current disability to decide the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim). The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection - Left Knee Disorder The Veteran seeks service connection for a left knee disability. He asserts such a disability is due to or the result of, or otherwise aggravated by, his service-connected traumatic arthritis of the right knee. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448. Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended effective October 10, 2006. The new provisions require, however, that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. The Veteran filed his claim in April 2006, prior to the effective date of the amended provision. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. As an initial matter, the Board must consider service connection for left knee arthritis on a direct basis; that is, as having been incurred during service, manifested to a compensable degree within a year thereafter, or exhibiting chronic and continuous symptoms since service. 38 C.F.R. § 3.303(b). VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). The RO attempted to obtain on several occasions but without success, the Veteran's service treatment records. The Veteran was able himself, however, to obtain these records, and has provided VA with copies. Nevertheless, these records appear incomplete, as both service entrance and service separation examinations are not of record. In such cases, VA has a heightened obligation to assist the Veteran in the development of his claim as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington, 19 Vet. App. 369-70. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). During his October 2007 VA examination, the Veteran denied any in-service disease or injury of the left knee, reporting only an injury to his right knee. However, he did state he tore a patellar tendon of the left knee in December 1992, after service, while playing basketball. Thus, the competent evidence of record does not show, and the Veteran does not assert, the presence of an in-service disease or injury of the left knee, chronic symptoms of the left knee in service, or continuous symptoms of the left knee since service separation. In the absence of such evidence, presumptive service connection is not warranted. 38 C.F.R. § 3.303(b). The Board thus finds service connection for a left knee disorder on a direct basis is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Regarding the assertion of service connection for a left knee disorder on a secondary basis, the Veteran was granted service connection in February 2008 for traumatic arthritis of the right knee, effective from June 14, 2005. This award was later modified in July 2011 as traumatic arthritis of the right knee, status post total knee arthroplasty. The Veteran asserts his right knee disability has resulted in or aggravated a left knee disorder. Upon review of the evidence of record, both lay and medical, the Board finds that traumatic arthritis of the left knee is neither caused by or permanently worsened in severity beyond a normal progression by the traumatic arthritis of the right knee, status post total knee arthroplasty. The October 2007 VA examination report discussed, as noted above, the Veteran's own report of his first left knee injury in 1993, many years after service separation, while playing basketball. A patellar tendon tear of the left knee was diagnosed, according to VA treatment records, and he was afforded surgery by VA. Currently, the Veteran had significant traumatic arthritis of the left knee, according to the examiner, a VA physician. Regarding any nexus between the right and left knee disorders, the VA examiner stated that addressing such an etiology would require resort to speculation. He further stated that the 1993 post-service injury was sufficient to result in the current traumatic arthritis of the left knee, and the left knee disorder "was not caused and was not aggravated or made permanently worse by the right knee condition." As this opinion was offered by a competent medical professional after both physical examination of the Veteran and review of the claims file, it is afforded significant probative weight by the Board. Review of the claims file indicates no opinion to the contrary rendered by a medical expert. The Veteran himself asserts that his left knee disorder is caused or aggravated by his service-connected right knee disorder. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Moreover, VA may not did not categorically dismiss the appellant's lay assertions regarding both the presence and etiology of any disorder merely because the appellant is a layperson. See King v. Shinseki, 700 F.3d 1339, 1343-45 (Fed. Cir. 2012) (stating that Board may not deem lay evidence categorically incompetent nor required a medical opinion as the sole way to prove causation). Nevertheless, in weighing the probative value of the evidentiary record, the lay origins of a piece of evidence may be considered by VA. Id. In the present case, the Veteran has offered no rationale for his assertion that his traumatic arthritis of the left knee is either due to or aggravated by his service-connected right knee disability. Even assuming the credibility of these lay assertions, the Veteran has himself reported an initial 1993 injury to this left knee while playing sports, without an obvious nexus to the service-connected right knee disability by his own account. The Board recognizes that service connection on a secondary basis may still be awarded based on aggravation of the left knee disorder by a service-connected disability, as the Veteran asserts; however, the Veteran has not provided any rationale or explanation of how his service-connected right knee disability aggravates his nonservice-connected left knee disorder. As such, and because he lacks any sort of specialized training or medical expertise, his assertions of a nexus between the service-connected right knee disability and the current left knee disorder are not competent and carry no probative weight, especially when weighed against the 2007 VA medical opinion rendered by a medical doctor. The Veteran has also not stated he was told by a competent expert of a nexus between his service-connected right knee disability and his left knee disability, nor has such a nexus been affirmed by any such an expert within the record. In conclusion, the preponderance of the evidence is against the service connection claim for a left knee disorder, as such a disorder was not incurred in service, resulted in chronic in-service symptoms or continuous post-service symptoms, manifested within a year of service separation, or caused or was aggravated by a service-connected disability. As the preponderance of the evidence is against the claim, which must be denied, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left knee disorder, to include as secondary to service-connected traumatic arthritis of the right knee, status post total knee arthroplasty, is denied. REMAND Service Connection - Right Foot/Ankle Disorder The Veteran seeks service connection for a disorder of the right foot/ankle. He was afforded a VA examination and opinion in October 2007. First, the examiner assessed that the Veteran likely had an Achilles tendon sprain which occurred on active duty. According to the examiner, the Veteran had "no significant symptoms relating to the right ankle" and "no objective findings on examination of the right ankle joint". In addressing the possibility of a nexus to the service-connected right knee disability, the examiner then opined, it was unlikely the "Achilles tendonitis" of the right ankle was related to the right knee disability. The Board finds this examination report and opinion flawed for two reasons. First, by discussing Achilles tendonitis of the right ankle, the examiner suggests the Veteran has a current disorder of the right ankle, something he denied earlier in the same report. Second, assuming the Veteran does have a current right ankle disorder, the examiner did not address any possible nexus with service, despite noting that the Veteran likely sustained an Achilles tendon sprain in service. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, remand for a new VA examination and opinion is required. Initial Rating - Traumatic Arthritis of the Right Knee As noted by the June 2013 brief filed by the Veteran's representative, the Veteran underwent total knee arthroplasty of his right knee in June 2011. The Veteran has not, however, been afforded a VA medical examination since that time to determine the current degree of impairment of the right knee. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Accordingly, these issues of service connection for a right foot/ankle disorder and a higher initial rating for traumatic arthritis of the right knee are REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA orthopedic examination for the purpose of assisting in determining the nature and etiology of any current disorders of the right ankle and/or foot. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history, and an examination and any necessary testing, the examiner is asked to offer the following opinions: a) Based upon review of the record and personal evaluation of the Veteran, what current disabilities (diagnoses) of the right ankle or foot does the Veteran have? b) Is it at least as likely as not (50 percent or greater degree of probability) that any current disorders of the right ankle or foot are related to any in-service disease or injury? In addressing this question, the examiner must specifically address the Achilles tendon sprain in service. c) Is it at least as likely as not (50 percent or greater degree of probability) that any current disorders of the right ankle or foot are caused by a service-connected disability or disabilities? d) Is it at least as likely as not (50 percent or greater degree of probability) that any current disorders of the right ankle or foot are aggravated (permanently increased in severity beyond the natural progression of the disorder) by a service-connected disability or disabilities? In answering these questions, the examiner should note that the Veteran's service-connected disabilities are traumatic arthritis of the right knee, status post total knee arthroplasty, and a right knee scar. A rationale should be provided for any opinion or conclusion expressed. 2. The AMC/RO should schedule the Veteran for a VA orthopedic examination to assist in determining the current severity of the service-connected right knee disability. The examiner should conduct range of motion testing of the knee and indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation of the right knee. The examiner should indicate whether lateral instability or recurrent subluxation is slight, moderate or severe. Any other impairment of the right knee, to include residual pain or weakness of the joint, should also be indicated. 3. After undertaking any additional development deemed appropriate, and giving the Veteran the full opportunity to supplement the record, readjudicate the claims for service connection for a right ankle/foot disorder, including as secondary to a service-connected disability or disabilities, and for a higher initial rating for a right knee in light of all additional evidence added to the record. Such reconsideration of the service connection claim should include the theory of entitlement to service connection as secondary to a service-connected disability. If any benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655. 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. 2013). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs