Citation Nr: 1341091 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 94-12 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right knee (a right knee disability). 2. Entitlement to a total disability rating based on individual unemployabilty due to service-connected disabilities (TDIU) for the appeal period prior to January 5, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1986 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1998 and July 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over this claim is now with the RO in Muskogee, Oklahoma. Historically, in February 1998, the Veteran filed a claim seeking a TDIU. In a September 1998 rating decision, a TDIU was denied. The Veteran appealed that decision to the Board. In a July 1999 rating decision, service connection for a bilateral knee disability was denied. The Veteran also appealed that decision to the Board. The Veteran attended a Board Videoconference hearing in April 2002, which was conducted by a Board Member (now called a Veterans Law Judge) who is no longer employed by the Board. In December 2002, the Board remanded the issues on appeal for further development. Following the RO's May 2005 rating action, the Veteran requested another Board hearing. The Veteran then testified from the RO in Muskogee, Oklahoma, at a Travel Board hearing in October 2007 before the undersigned Veterans Law Judge. Copies of the transcripts of the referenced hearings are included in the claims folder. In an April 2008 decision, in pertinent part, the Board denied service connection for a bilateral knee disability and entitlement to a TDIU. The Veteran appealed the April 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 memorandum decision, the Court vacated the Board's April 2008 decision as to each issue, and remanded the case to the Board. As to the issue of entitlement to a TDIU, the record reflects that in a February 2010 rating action the RO granted TDIU, effective from January 5, 2010. Accordingly, the February 2010 rating decision was only a partial grant of the benefit of sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, the matter of entitlement to a TDIU for the period prior to January 5, 2010 remains on appeal. In March 2011 and May 2013 decisions, in pertinent part, the Board remanded the claims for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. The issue of entitlement to a TDIU prior to January 5, 2010 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. The Veteran engaged in combat with the enemy during service in Panama. 2. The Veteran sustained right knee injuries in service, including during combat. 3. Symptoms of a right knee disability were not chronic in service. 4. Symptoms of a right knee disability have been continuous since service separation. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right knee disability of degenerative joint disease have been met. 38 U.S.C.A. §§ 1131, 1154(b), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for a right knee disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted in this decision, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, degenerative joint disease (as arthritis) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. 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, 1137 (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. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Combat Rule In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In this case, the evidence is at least in equipoise as to whether the Veteran engaged in combat. While the Veteran's complete personnel records have not been associated with the claims file, the record reflects that the Veteran participated in Operation Just Cause during the U.S. invasion of Panama in December 1989 against General Manuel Noriega and the Panamanian army. In this regard, VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The Veteran's Form DD 214 indicated that the last duty assignment and major command was the 156th Signal Battalion, Field Command (FC), Republic of Panama. Also, service treatment records revealed treatment at Gorgas Hospital (a U.S. Army Hospital) located in Panama City, Panama. The Form DD 214 also indicates that, among other awards, the Veteran is in receipt of the Army Achievement Medal 2D Oak Leaf Cluster. Based on this evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran engaged in combat with the enemy during service in Operation Just Cause, and the combat rule is applicable. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Service Connection for a Right Knee Disability The Veteran contends that the right knee disability originated in service. Specifically, she contends that she injured the right knee in service, including during combat, and has had symptoms of a right knee disability in service and since discharge from active service. Alternatively, she asserts that the right knee disability is secondary to the service-connected right foot metatarsalgia, bilateral flatfeet, plantar fasciitis, heel spurs, and left hip bursitis. As the Board is granting service connection based on presumptive service connection (adjudicated below), the contended alternate theory of secondary service connection pursuant to the same benefit is rendered moot because there remain no questions of law or fact as to the fully granted issue; therefore, the secondary service connection theory will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides "questions" of law or fact). After a review of all the evidence, the Board first finds that the Veteran sustained a right knee injury during service, including during combat in Operation Just Cause against General Manuel Noriega and the Panamanian army. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran has consistently reported that she ran a lot during service, which caused pain to her knees. See April 2003 VA Examination Report; see also Hearing Transcript at 26. She has also consistently reported that in December 1989, during Operation Just Cause in Panama, which also led to the capture and arrest of General Noriega in January 1990, she injured her knees when she jumped and fell from a truck to evade enemy hand grenade fire and mortar attacks. See July 2003 VA Examination Report; see also July 2013 Statement. As discussed above, the Board finds that the Veteran engaged in combat with the enemy during service in Panama in Operation Just Cause. As a combat Veteran, the Board finds that the Veteran sustained injuries to the right knee as described because the incidents described are consistent with the circumstances, conditions, and hardships of her duties in service and her statements alone are sufficient to corroborate the injury. 38 U.S.C.A. § 1154(b). Indeed, in an April 1991 VA neuropsychiatric examination, the Veteran reported that during combat in December 1989 she was "driving a jeep for the platoon sergeant, running about the streets of Panama, all over during that time, and as such was subject to small arms fire and nearby there were attacks by mortars." See April 1991 VA Neuropsychiatric Examination Report. The Veteran's accounts of combat reported during the April 1991 VA examination, to include being subject to small arms fire and mortar attacks, served as a basis for the award of service connection for posttraumatic stress disorder (PTSD). As such, the Veteran's statements of injuries (specifically, running and jumping from a truck during an attack), consistent with the circumstances, conditions, and hardships of her duties in service, are sufficient proof of the injuries notwithstanding the lack of official record (such as service treatment records) of such incurrence. While the Veteran sustained right knee injuries in service, the evidence does not show "chronic" right knee symptoms during service. Service treatment records weigh against a finding of chronic symptoms of a right knee disability during service. The service treatment records are absent for complaints, diagnosis, or treatment of a right knee disability. Such evidence weighs against a finding of chronic right knee disability symptoms during service. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the Veteran has a current disability of right knee degenerative joint disease. The Veteran underwent VA examinations of the right knee in February 2000, April 2003, July 2003, and April 2011 with a June 2013 addendum medical opinion. During the February 2000, April 2003, and July 2003 examinations, no right knee disability was detected, although knee pain was documented. The April 2011 VA examination report revealed a diagnosis of degenerative joint disease of the right knee by X-ray. The Board further finds that the evidence of record is at least in equipoise on the question of whether the Veteran had "continuous" symptoms of a right knee disability after service separation. The evidence that weighs against the claim includes that, following service separation in February 1990, the evidence of record shows no complaints, diagnosis, or treatment for a right knee disability until October 1998, the date the Veteran submitted a claim for service connection of the knees. The absence of post-service findings, diagnosis, or treatment for approximately eight years after service is one factor that tends to weigh against a finding of continuous right knee symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). However, favorable evidence includes a VA treatment report from May 1998, which was approximately five months prior to filing the current claim for service connection, during which the Veteran sought treatment for low back and left hip pain. During treatment, the Veteran reported recurrent episodes of falling. In a July 1999 statement, the Veteran further explained that she would fall causing pain to her knees. Indeed, the Veteran is competent to provide evidence regarding her right knee symptoms that she experienced at any time, including since service separation, as such symptoms are readily apparent. Such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). This report of recurrent, falling episodes made to the Veteran's treating health professional in May 1998 is of probative value because it was made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). Furthermore, the Board finds the Veteran's allegations of continuous post-service symptoms of the right knee are credible because they have been consistent throughout the claim and appeal process. In short, with regard to the Veteran's assertions that symptoms of a right knee disorder began during active duty and have continued following service, the Board finds that the Veteran is competent and credible to report the onset of symptoms of a right knee disability, including pain and resulting falls. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. at 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board will resolve reasonable doubt to find that the Veteran's right knee symptoms were continuous since service, thus meeting the 38 C.F.R. § 3.303(b) criteria for presumptive service connection. In this case, the Veteran sustained a right knee injury in service resulting in pain and falling episodes, and she reported that she has experienced those same symptoms continuously since service separation. See 38 C.F.R. § 3.303(b) (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). The same symptoms formed the later diagnosis of right knee degenerative joint disease. See Rhodes v. Brown, 4 Vet. App. 124, 126-27 (1993) (lay witnesses testimony of post-service continuous symptoms of numbness and tingling may be sufficient to substantiate a claim of service connection for thoracic outlet syndrome); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition); Savage, 10 Vet. App. at 496-97 (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for a right knee disability of degenerative joint disease have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right knee degenerative joint disease is granted. REMAND In the decision above, the Board has granted service connection for a right knee disability. As previously noted, the RO adjudicated the issue of a TDIU in a September 1998 rating decision. A right knee disability was not service connected at the time of the September 1998 adjudication; therefore, the occupational impairment associated with the (now service-connected) right knee disability was not considered by the RO in the earlier adjudication of a TDIU, specifically prior to January 5, 2010. In light of the grant of service connection for a right knee disability in this Board decision, which will be made effective the date of receipt of claim for service connection, October 13, 1998, with the potential effect of the initial rating for a right knee disability to change the combined schedular rating or provide one rating at 40 percent, the RO should reconsider the issue of a TDIU prior to January 5, 2010. See 38 C.F.R. §§ 4.16, 4.25 (2013). Even if the combined schedular criteria for consideration of TDIU of 38 C.F.R. § 4.16(a) are not met prior to January 5, 2010, the additional occupational impairment and symptoms due to the service-connected right knee disability will need to be considered to assist in determining whether referral for TDIU under the provisions of 38 C.F.R. § 4.16(b) is warranted. Accordingly, the issue of entitlement to a TDIU prior to January 5, 2010 is REMANDED for the following action: After implementing the Board's decision to grant service connection for a right knee disability, and accomplishing any additional notification and/or development deemed warranted, to include obtaining a medical opinion, the issue of entitlement to a TDIU prior to January 5, 2010 should be readjudicated in light of all the evidence of record, considering additional occupational impairment caused by the right knee disability, along with all other service-connected disabilities. If a TDIU remains denied, the Veteran and her representative should be furnished with an appropriate supplemental statement of the case, and should be afforded the appropriate time period for response. The Veteran 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs