Citation Nr: 1324959 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-32 308A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left eye disability. 2. Entitlement to service connection for a right knee disability, claimed as right knee injury. 3. Entitlement to service connection for a left knee disability, claimed as left knee injury. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active duty from November 1979 to October 1983, active duty for training (ACDUTRA) from July 1999 to November 1999, active duty from July 2000 to March 2001, and active duty from September 2004 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A video conference hearing was held in April 2013, with the Veteran sitting at the RO and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony is associated with the claims folder. The Veteran has submitted additional evidence to the Board, along with a signed waiver of initial AOJ consideration of that evidence in accordance with 38 C.F.R. § 20.1304 (2012). The issue of entitlement to service connection for a left eye disability 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. Resolving the benefit of the doubt in the Veteran's favor, competent medical evidence of record establishes a diagnosis of degenerative joint disease in the right knee to a compensable degree within one year following the Veteran's discharge from active service. 2. Resolving the benefit of the doubt in the Veteran's favor, competent medical evidence of record establishes a diagnosis of degenerative joint disease in the left knee to a compensable degree within one year following the Veteran's discharge from active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right knee disability, diagnosed as degenerative joint disease, have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.71a, Diagnostic Code 5003 (2012). 2. The criteria for establishing service connection for a left knee disability, diagnosed as degenerative joint disease, status post arthroscopy, have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this decision, the Board grants entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease, and grants service connection for a left knee disability, diagnosed as degenerative joint disease, status post arthroscopy, which constitutes complete grants of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal criteria Service connection - in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Analysis The Veteran avers that his disabilities of the right and left knees are related to his active service. First, the evidence shows that the Veteran has current disabilities of the right and left knees. Private treatment records reveal diagnoses of degenerative joint disease of the right and left knees. In addition, a July 2008 VA examination report shows that the Veteran was diagnosed with residuals, left knee arthroscopy. As noted in the Introduction, the Veteran had active duty from November 1979 to October 1983, ACDUTRA from July 1999 to November 1999, active duty from July 2000 to March 2001, and active duty from September 2004 to November 2005. The service treatment records from the Veteran's first period of active service are not available. However, the Veteran submitted some copies of records from his first period of active service, which indicate complaints of knee pain, but no confirmed diagnosis. In fact, there is no medical evidence or complaints related to the Veteran's knees until a private treatment record dated in March 2001, immediately after the Veteran was discharged from his period of active duty from July 2000 to March 2001. Private medical records dated in March 2001 show that the Veteran developed pain in both knees the previous year without antecedent trauma other than doing some running and sitting for long periods of time. It was noted that the Veteran worked as a helicopter repair person on his knees, stooping and squatting, but also was in the National Guard doing running activities. Dr. S.J.L. stated that the bilateral knee magnetic resonance imaging (MRI) evaluations showed mild arthritic changes of the right knee and a left knee non-displaced horizontal tear of the body with posterior horn of the medial meniscus with degenerative changes. The Veteran was provided a VA joints examination in July 2008 and an addendum opinion was provided in September 2008. The examiners addressed the Veteran's first period of active duty, and his period of active duty from September 2004 to November 2005. However, the examiners did not discuss whether the Veteran's left and right knee disabilities were etiologically related to his period of ACDUTRA or his period of active duty from July 2000 to March 2001. In this case, the Board acknowledges that the Veteran's service treatment records from his period of active duty from July 2000 to March 2001 do not reveal complaints or diagnoses related to the knees. However, the private medical records reveal that the Veteran's knees exhibited degenerative changes in March 2001, less than one month after his discharge from active service. Indeed, Dr. S.J.L. noted review of MRI findings which revealed degenerative changes in both knees. Although the degenerative changes noted in the left knee were not specified as arthritis, there was no clinical distinction from arthritits. As such, with resolution of doubt in the Veteran's favor, the Board finds that the left knee degenerative changes identified on MRI findings in March 2001 may not be held to be other than arthritis. As the Veteran served on active duty for a period of greater than 90 days, if arthritis was manifest to a degree of 10 percent or more within one year of discharge from service, service connection is warranted. See 38 C.F.R. § 3.307(a). Degenerative arthritis is rated under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is given for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In this case, the Board finds that MRI findings are akin to X-ray findings. While the actual MRI reports are not of record, the Board finds no reason to question the veracity of Dr. S.J.L.'s statement that he reviewed MRI findings that revealed degenerative changes of the right and left knees. Thus, there is competent medical evidence of arthritis in the right and left knees within one year following his discharge from active service. With respect to whether the Veteran's arthritis of the left and right knees manifested to a compensable degree or higher, the Board recognizes that the private medical records indicated that the Veteran had full or good range of motion. However, the evidence also indicated that the Veteran had pain and evidence of effusion. As such, it is reasonable to conclude that the Veteran had painful motion of the knees. Under Diagnostic Code 5003, a 10 percent rating is awarded for painful motion with X-ray evidence of arthritis, regardless of whether the range of motion is limited to a compensable degree. In light of the above, the Board finds that the Veteran is entitled to service connection on a presumptive basis. As no probative evidence to the contrary is present in the record that would rebut the presumption afforded, service connection for arthritis, or degenerative joint disease, in the right and left knees is warranted. 38 C.F.R. § 3.307, 3.309(a). ORDER Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease of the right knee, is granted. Entitlement to service connection for a left knee disability, diagnosed as degenerative joint disease, status post arthroscopy, is granted. REMAND With respect to the Veteran's claim for entitlement to service connection for a left eye disability, the Board finds that additional development is required. The Veteran avers that he has a current left eye disability related to his first period of active duty. He reported that he experienced vision impairment since an in-service left eye injury and pain and swelling of the left eyelid. He stated that he had to wear glasses after the injury and did not wear glasses prior to the injury. The service treatment records from the Veteran's first period of service are unavailable. However, the Veteran submitted copies pertaining to his left eye surgery during service. The enlistment report of medical examination shows that the Veteran checked "no" as to whether he wore glasses or contact lenses. The report of medical examination reveals that the Veteran's eyes were clinically evaluated as normal and the Veteran's distant vision was 20/20 in the left eye and near vision was 20/20 in the left eye. A February 1983 record noted that the Veteran complained of pain in his left eye and that he was operated on for hemangioma. A February 1983 physical profile proceedings show that the physical defect was listed as left upper eyelid droops, blocking vision from the left eye when at its worse, and pain around the left eye. Another February 1983 record shows that the Veteran was prescribed eyewear. Years later, the April 1999 enlistment report of medical examination shows that the Veteran's eyes were clinically evaluated as normal; however, the left eye distant vision was listed as 20/40 corrected to 20/20 and 20/100 for near vision corrected to 20/20. The Veteran was provided a VA examination in July 2008. The examiner listed a diagnosis of dermatochalasis. The examiner opined that the dermatocholasis was not related to the previous eye enlargement/swelling/surgery. The examiner stated that dermatochalasis is related to redundant skin of the upper eyelid which was present on both eyelids which could account for feelings of heaviness. However, the Board finds that the VA examiner's opinion is inadequate. The service treatment records show that the Veteran did not enter his first period of active service with any visual impairment of the left eye. However, the Veteran stated that he experienced disturbances of vision since his in-service left eye injury. A February 1983 service treatment record shows that the Veteran was prescribed eye wear during his period of active service. The July 2008 VA examiner did not discuss the Veteran's complaints regarding impairment of vision since his in-service left eye injury. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the Board finds that the VA examiner's opinion is not adequate and the Veteran should be provided a new VA examination and opinion to determine the nature and etiology of his current left eye disability. Finally, during the hearing, the Veteran indicated that he receives private treatment from Dr. Atler. Therefore, the RO/AMC should request that the Veteran identify any VA and private treatment he has received for his left eye and to complete the necessary authorization so VA can obtain records on his behalf. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran authorization forms to obtain records from any health care provider that has treated him with respect to his left eye disability, to include Dr. Atler. Once signed releases are received from the Veteran, obtain the identified records. The RO/AMC should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule a VA examination to ascertain the nature and etiology of the Veteran's current left eye disability. The claims file should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. Provide all diagnoses related to the left eye, to include any visual impairment. Offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left eye disability had its onset in service or is otherwise caused by or related to active service, to include left eye complaints and surgery in February 1983. A rationale should be provided for any opinion expressed. 3. After the above development is completed and any other development deemed necessary, readjudicate the claim of entitlement to service connection for a left eye disability. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs