Citation Nr: 1513383 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 11-16 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for coronary artery disease. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee and right ankle disabilities. 4. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability (formerly evaluated as transverse fracture of the proximal third of the fifth phalanx of the right foot). 5. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative tear of the medial meniscus and tear of the lateral meniscus with degenerative joint disease of the right knee (right knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Travel Board hearing was held in November 2012 with the Veteran in Nashville, Tennessee before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the claims folder. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. The Board has reviewed the Veteran's claims folder as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The issues of entitlement to increased disability ratings for right knee and right ankle disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the November 2012 Board hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for coronary artery disease and a bilateral hip disability. 2. The evidence of record is in equipoise as to whether the Veteran's current left knee disability is related to his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for coronary artery disease have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a bilateral hip disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 3. Resolving the benefit of the doubt in the Veteran's favor, the Veteran's left knee disability is a result of his service-connected right knee disability. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. § 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for coronary artery disease and a bilateral hip disability An appeal may be withdrawn in writing as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the November 2012 Board hearing, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal as to the issues of entitlement to service connection for coronary artery disease and a bilateral hip disability. See the November 2012 Board hearing transcript, page 2. Thus, the Board finds there remains no allegation of errors of fact or law for appellate consideration concerning these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed. Service connection for a left knee disability VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In this case, the Board is granting in full the benefit sought on appeal, which is entitlement to service connection for a left knee disability. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Analysis The Veteran seeks entitlement to service connection for a left knee disability, to include as secondary to right knee and right ankle disabilities. However, since his claim is being granted based on a secondary service connection theory of entitlement, in particular his left knee disability secondary to his service-connected right knee disability, no further discussion is required regarding the direct service connection theory. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2014); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2014); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to element (1), current disability, the competent medical evidence of record indicates diagnoses of a left knee disability, specifically left knee degenerative joint disease. See, e.g., a March 2012 VA examination report. Accordingly, element (1), current disability, is satisfied. Element (2) has been met; the Veteran is service-connected for a right knee disability and a right ankle disability. Turning to element (3), nexus, the Board notes that the record contains conflicting medical opinions which address the issue of nexus. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In support of his claim, the Veteran submitted a private medical opinion dated November 2012 from M.D., D.O., who has treated the Veteran for the left knee disability. In the November 2012 report, Dr. M.D. opined that the Veteran's left knee osteoarthritis is due to (with a probability of 100 percent) his service-connected right knee osteoarthritis. Dr. M.D.'s rationale for his opinion was based on his treatment of the Veteran for the knee disabilities as well as his review of the Veteran's medical history, MRI, and X-rays. In contrast to the opinion of Dr. M.D., a VA examiner concluded in a March 2012 report following examination of the Veteran and consideration of his medical history that the Veteran suffers from left knee degenerative joint disease, and that this disability is less likely than not due to the Veteran's right knee disability. The VA examiner's rationale for his conclusion was based on his finding that the Veteran's left knee disability is consistent with the aging process. He further reported that the left knee arthritis would not be expected to be caused by the right knee disability as the Veteran has near full range of motion in the right knee. Also, the right knee has most likely slowed the Veteran down in his activities over the past few years causing less stress on the left knee. Moreover, the Veteran has not had to limp to any significant degree with the right knee to cause increased stress on the left knee. The opinion of Dr. M.D. and the opinion of the VA examiner were based upon thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Given both positive and negative nexus opinions of equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's currently diagnosed left knee disability is related to his right knee disability. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014). As such, element (3), and thereby all three elements, has been satisfied. Because each of the three Wallin elements has been met, service connection for a left knee disability is warranted. ORDER The appeal concerning the issue of entitlement to service connection for coronary artery disease is dismissed. The appeal concerning the issue of entitlement to service connection for a bilateral hip disability is dismissed. Entitlement to service connection for a left knee disability is granted. REMAND Higher evaluations for right knee and right ankle disabilities During the above-referenced November 2012 Board hearing, the Veteran reported that he is in receipt of Social Security Administration (SSA) disability benefits. See the November 2012 Board hearing transcript, page 10. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. Moreover, it is unclear as to whether the Veteran is in receipt of SSA benefits at least in part due to his right knee and right ankle disabilities. Therefore, on remand, any determination pertinent to the appellant's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Additionally, the Veteran indicated at the November 2012 Board hearing that he received treatment for his right knee and right ankle disabilities from the VA Medical Centers in Nashville, Tennessee and Murfreesboro, Tennessee. See the November 2012 Board hearing transcript, page 8. A review of the record reveals that although updated treatment records from the Nashville VA Medical Center have been associated with the record, updated records from the VA Medical Center in Murfreesboro have not. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. With regard to the Veteran's right knee disability, he was last afforded a VA examination in March 2012 as to this disability. Pertinently, the evidence of record indicates that the Veteran's right knee disability has since increased in severity. Specifically, at the November 2012 Board hearing, the Veteran testified that his right knee disability has worsened over time, and that he experiences locking and popping in the knee. Notably, the March 2012 VA examination report is absent findings of locking or popping of the right knee. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; see also Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. Accordingly, the case is REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Request any outstanding VA treatment records pertaining to the claims remanded herein, to include treatment records from the VA Medical Center in Murfreesboro, Tennessee. All attempts to secure this evidence must be documented in the claims folder. 4. Thereafter, schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected degenerative tear of the medial meniscus and tear of the lateral meniscus with degenerative joint disease of the right knee. The claims file, to include any pertinent records contained in the Virtual VA and VBMS eFolders must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 2014). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs