Citation Nr: 1525737 Decision Date: 06/16/15 Archive Date: 06/26/15 DOCKET NO. 14-02 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for osteoarthritis, right knee. 2. Entitlement to service connection for osteoarthritis, left knee. 3. Entitlement to service connection for residuals of a groin injury in service, to include right groin testicular hematoma. 4. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left hip. 5. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right hip. 6. Entitlement to an initial evaluation in excess of 10 percent for right shoulder osteoarthritis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines that, in pertinent part, denied the Veteran's claims. The Veteran filed a timely notice of disagreement and the RO issued a statement of the case dated in November 2013. The Veteran filed a substantive appeal that was received in January 2014. In August 2014, the Veteran testified at a videoconference hearing before the undersigned. The Veteran testified that he had a rash in his groin area in service that continues to this day. In addition, in May 2014, the Veteran submitted a statement indicating that he wishes service connection for left femoral neck fracture as secondary to left shoulder osteoarthritis. These matters are referred to the AOJ for appropriate action. The issue of entitlement to service connection for residuals of a groin injury in service and the issues of higher evaluations for right shoulder and bilateral hips are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. A right knee disability, to include degenerative arthritis is due to military service. 2. A left knee disability, to include degenerative arthritis, is due to military service. CONCLUSION OF LAW 1. The criteria for an award of service connection for degenerative arthritis of the right knee have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2014). 2. The criteria for an award of service connection for degenerative arthritis of the left knee have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a bilateral knee disability that is the result of his service as a paratrooper in service. In this regard, the Veteran testified before the Board that he had as many as 50 jumps in service and that many of his joint issues began at that time. The Veteran's DD-214 indicates that he was awarded the parachute badge. The Veteran's service treatment records do not indicate treatment for the knees in service and the Veteran's separation examination was normal. The Veteran testified, however, that he started having knee pain while still in the military, but did not seek treatment as the pain was tolerable. He indicated that the pain had continued after service and recently increased in severity. In connection with his claim, the Veteran submitted several reports of his private physician dated from 2011 forward. The physician reviewed the Veteran's medical history and noted that the Veteran served as a paratrooper in the military with a total of 50 jumps. He indicated that these jumps took a toll on the Veteran's joints and knees. The Veteran was diagnosed with degenerative arthritis of both knees by X-ray. The physician opined that the degenerative arthritis of the knees was a direct result of the 50 parachute jumps in service and that the Veteran's knees will only worsen as the Veteran grows older. The Veteran was also afforded a VA opinion in December 2012 that indicated that the Veteran's knee conditions were less likely related to military service. The examiner noted that the Veteran's service treatment records and separation examination did not show knee disabilities and that there was no evidence of knee conditions within one year of service. The examination found that the recent manifestation of knee pain, diagnosed as ostearthritis, favored a degenerative process due to aging. It was found that this was less likely due to parachute jumping in the military several decades ago. The Veteran was examined by VA in March 2014. He was diagnosed as having patellar spurs. The Veteran's reports of knee pain in service and continuing afterward were noted. However, the examiner found that the condition was less likely related to service. In this report, the examiner indicated that the Veteran did not have osteoarthritis on current X-ray, but rather patellar spurs. The examiner then noted that patellar spurs were common findings in aging. The examiner also indicated that the Veteran denied experiencing pain and swelling in the knees, which was common to osteoarthritis. The examiner then opined that it was less likely that the patellar spurs in the current X-ray, clinically diagnosed as osteoarthritis, were incurred in service. The VA opinions are of limited probative value, because they did not consider the Veteran's reports of symptoms in service. The private opinion together with the Veteran's testimony places the evidence in at least equipoise. Resolving reasonable doubt in the Veteran's favour service connection for the claimed left and right knee disabilities is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative arthritis of the right knee is granted. Service connection for degenerative arthritis of the left knee is granted. REMAND The Veteran testified that he had an injury to his groin in service when training as a paratrooper. He reported that the parachute straps wrapped tightly between his legs as he jumped from a tower during a training exercise and caused a cut blood vessel, or hematoma. He reported that he had pain in the groin area since and that the pain has worsened with time. The Veteran also testified that he may have had a hernia at the time as well, indicating that he noticed a small bump that may have gone undiagnosed in service. In this regard, the Board notes that the Veteran was found to have a left inguinal hernia in the March 2014 VA examination report. The two VA opinions are against the claim. The December 2012 examiner found that the diagnosis in service was a hematoma involving his right testicle. The separation examination was normal. The examiner indicated that this injury was acute and transitory and healed without any chronic sequelae. The March 2014 examiner came to the same conclusion regarding the hematoma. However, neither examiner addressed the possibility that there may be other residuals of the jump injury, to include the Veteran's current pain and hernia disability. As such, further examination is warranted. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In March 2014, the RO, in pertinent part, granted service connection for right shoulder osteoarthritis and right and left hip, degenerative joint disease. The Veteran filed a notice of disagreement with the evaluations in January 2015. The RO, however, has not issued to the Veteran a statement of the case with respect to these issues. Inasmuch as the RO has not furnished the appellant a statement of the case that addresses the issue, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a statement of the case regarding the issues of entitlement to higher initial evaluations for service-connected right shoulder osteoarthritis, and bilateral hip degenerative joint disease. These issues should not be returned to the Board unless a timely substantive appeal is received. 2. Arrange a VA examination to determine whether the Veteran has any current residuals of a groin injury in service during a January 1966 parachute training exercise, to include residual pain and or a hernia disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The Veteran need not be re-examined unless further examination or diagnostic tests and studies need to be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran have any current residuals of a groin injury in service during a January 1966 parachute training exercise, to include residual pain and or a hernia disability? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has current residuals of a groin injury in service, did such disorder have its onset during active duty, within one year of active duty, or was such condition otherwise caused or aggravated by the Veteran's military service, to include the January 1966 injury? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. The appellant 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). 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs