Citation Nr: 1549819 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 08-04 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1978 to August 1978 and from September 1990 to June 1991. He also has at least 12 years of service in the Illinois Army National Guard. This matter is before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2002, the Veteran filed claims for service connection for right knee and right ankle disabilities; the RO did not develop the claims. However, by a July 2007 decision the RO denied the claims. In correspondence dated August 2009, the Veteran stated that he wished to "initiate a new claim for right knee condition." In an October 2009 letter, the RO informed the Veteran that he could not have a notice of disagreement and a claim to reopen pending at the same time. The RO requested that the Veteran submit a Form 21-4138 if he wished to cancel his notice of disagreement. The Veteran submitted the request form in November 2009, at which time he stated that he wished to cancel the NOD and "submit my claim for service connect disability for right knee sprain and wish to continue my appeal." In a December 2009 letter, the RO informed the Veteran that his November 2009 correspondence was construed simultaneously as a request to withdraw the right knee claim and a request to reopen that claim. The RO declined to reopen the claim in a March 2010 rating decision. In the Introduction to its March 2011 decision, the Board disagreed with the RO's characterization of the right knee claim. The Board found that the right knee claim was already on appeal when the Veteran submitted his October 2009 letter, and that the RO's correspondence was unnecessary and confusing. Accordingly, the Board recharacterized the right knee issue simply as a claim for service connection which was then the subject of appeal. The Board in March 2011 found the right knee and right ankle disability claims to be properly on appeal before the Board for review, and continues to do so. The Board in March 2011 and again in February 2014 remanded for additional development the claims the subject of this appeal. The appealed claims now return to the Board for review. FINDINGS OF FACT 1. The preponderance of the evidence favors a current right knee disability having developed in service. 2. The preponderance of the evidence is against a right ankle disability present at any time during the pendency of the claim which developed in service or was causally related to service. 3. The preponderance of the evidence is against the presence of arthritis of the right ankle within the first post-service year. CONCLUSIONS OF LAW 1. A right knee disability was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. A right ankle disability was not incurred in or aggravated by active military service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2015). Because the Board herein grants the claim for service connection for right knee disability, there is no reasonable possibility that additional notice or development assistance will further that claim. The Board thus need only discuss adequacy of notice and development assistance with regard to the right ankle disability claim. The Veteran was provided the requisite notice in correspondence dated in March 2007. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This was prior to the appealed July 2007 RO rating action. He was provided an additional notice development letter in April 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA obtained available service treatment records, private treatment records, VA medical records, and multiple VA examination reports. VA also assisted the Veteran in obtaining evidence and afforded him the opportunity to present testimony, written statements, and other evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record, and the Veteran has not contended otherwise. 38 U.S.C.A. § 5103A , 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided, is available but not associated with the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was afforded several VA examinations in conjunction with his claim for service connection; the most recent examination is adequate. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board remanded the claims in March 2011 because the VA examiner in March 2007 failed to discuss the records which diagnosed degenerative arthritis of the right knee approximately 18 months after the Veteran's June 1991 service separation, and failed to discuss the multiple diagnoses of arthritis and polyarthritis between February 2001 and September 2001, as well as the diagnosis of palindromic rheumatism in December 2002. The Board remanded the claim again in February 2014 because a VA examiner in May 2011 failed to provide requested etiology opinions addressing the Veteran's claimed right knee and ankle disabilities and any link to service, and because that examiner provided an inaccurate history of injury in service in "1997" rather than in 1991. The Board now finds that the newly obtained VA examination in March 2014 fulfilled the requirements of the Board's remands by accurately reviewing the Veteran's history from service and following service, and providing requested opinions of etiology of the claimed disabilities. The examiner provided sufficient findings and rationale to support the Board's adjudication of the appealed claims, with the findings and opinions sufficient to be weighed against contrary evidence. The Board herein grants the claim for service connection for a right knee disability, and hence any deficiency in the examination and in the remand development would only be relevant to adequate development of the right ankle claim. The Board finds such development adequate to support its adjudication herein of the right ankle claim. Other requirements of the Board's remands were also substantially fulfilled. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). II. Service Connection Claims - Legal Criteria Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 . In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. In addition, 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). While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, lay statements may serve to support a claim for service connection or increased rating by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). III. Factual Background and Analysis The Veteran contends, in effect, that his right ankle and right knee disabilities developed in service and have persisted up to the present time. At his hearing before the undersigned in February 2010, the Veteran asserted that his knee and ankle disabilities began with his injury in service when he banged his knee on a car door and then twisted the ankle. However, he was vague as to whether there was persistent difficulty with the ankle and when following service he began having difficulty with the ankle. He conceded that the ankle had not bothered him lately, but testified that doctors had informed him that he may have difficulty with the ankle in the future related to his past ankle sprain. The Veteran testified to difficulty with the knee, with swelling, beginning in 2004. He additionally reported ongoing knee difficulty. Service treatment records include an April 1991 record of care for difficulties with the right ankle following stepping on a rock and twisting the ankle in February of that year, with re-injury of the ankle four days prior to the treatment visit. However, also at that care visit he complained of pain in the right knee when lifting or squatting, with the pain persistent for 10 to 15 minutes after such actions prior to subsiding. There was mild lateral tenderness in the knee, but no swelling. There was negative anterior drawer testing and full range of motion. The treating physician diagnosed sprain of the right ankle and arthritis of the right knee. Other service treatment records do not address arthritis of the right knee or other right knee disability, and do not address the right ankle. The May 1991 separation examination includes a normal clinical evaluation of the lower extremities. On the first page of the report, the clinician noted that the Veteran had injured his left ankle in February 1991, but stated that range of motion was fine. On the second page of the report, the clinician noted that the Veteran was "still having intermittent problems" but that the left ankle was getting better. He recommended an orthopedic evaluation "as needed." On the accompanying medical history report, the clinician noted that the Veteran reported recurring pain in his ankle. The clinician's reference to the left ankle appears to be a typographical error, as the service treatment records clearly establish that the Veteran injured his right ankle in February 1991, not his left. A January 1993 VA treatment record shows that the Veteran reported that his right knee sometimes gave out on him. He reportedly hit the knee against a vehicle door during Desert Storm. There was no swelling. X-rays showed degenerative arthritis. The clinician prescribed Tylenol and Ibuprofen as needed. VA treatment records dated October 1999 to July 2001 reflect that the Veteran participated in a VA Antibiotic Treatment Study. The purpose of the study was to determine whether treatment with an antibiotic would benefit Veterans with Gulf War Veterans' Illnesses. Records reflect that the Veteran tested positive for mycoplasma infection. Throughout the study, he complained of multiple joint pains, to include his right knee and right ankle. He also reported intermittent swelling of both his knee and ankle. In February 2001, the Veteran was treated for pain and stiffness in his knees and ankles. He complained of ankle pain "for years" that had progressively gotten worse. The diagnosis was undefined joint disease, "rule out fibromyalgia vs. hypothyroid vs. metabolic cause." In March 2001, the Veteran was diagnosed with osteoarthritis in the right knee and migratory joint pain. There is reference to an April 2001 ankle X-ray that was within normal limits, although it is not clear which ankle was radiographed. In May 2001, the Veteran was diagnosed with seronegative polyarthritis. In September 2001, the Veteran was diagnosed with spondyloarthropathy and inflammatory polyarthritis that "currently appears quiet." Later that month, he reported arthralgias and swelling in his knees and ankles since 1994, with the pain progressively worsening since that time. The impression was arthraligias, etiology unclear. It was recommended that the Veteran follow up with the rheumatology clinic. A December 2002 VA treatment record contains a diagnosis of palindromic rheumatism. In February 2003, there was crepitus in the Veteran's knees. In September 2005, the Veteran reported a history of swelling in his right ankle and right knee ever since he twisted the right ankle while in Saudi Arabia and hit his knee while trying to get into a vehicle. He complained of current right knee and right ankle pain. There was slight edema to the ankle, which the clinician noted was "most likely" due to the Veteran's hypertension medication. At a May 2007 VA joints examination, the Veteran reported flare-ups of sharp knee pain, severe in intensity, particularly when trying to get up or following prolonged standing. He also reported swelling of the knee, although the last time he had swelling had been the previous year. He also reported recurrent right ankle pain with flare-ups of severe soreness. X-rays of the right knee showed irregularity or calcification adjacent to the lateral intercondylar tibia. X-rays of the right ankle suggested an old healed fracture of the distal right fibula. The examiner reviewed the claims file and noted that a right knee/right ankle sprain was documented in April 1991. The diagnosis was history of right knee sprain and history of right ankle sprain, no residual functional impairment. The examiner noted that he had conducted a careful review of the claim file, and opined that the right knee and right ankle conditions were less likely than not associated with the knee or ankle sprains during service. He also determined that there was no chronic disability in either the knee or the ankle. Pursuant to the Board's March 2011 remand instructions, the Veteran was provided with a VA joints examination in May 2011, at which time he was diagnosed with degenerative arthritis and torn meniscus of the right knee as well as osteoarthritis of the right ankle. However, the May 2011 VA examiner failed to provide an etiological opinion with respect to the diagnosed disabilities. The examination report indicated that the Veteran injured his right knee in 1997 while getting out of a vehicle during Operation Desert Storm, whereas the record had previously established at this event occurred in 1991. An addendum opinion was obtained in June 2012, in which the May 2011 VA examiner indicated that the date of injury was erroneously recorded as 1997, whereas the actual date of injury was 1991. The examiner further indicated that the remainder of the examination report was reviewed and the findings and conclusions contained within remained the same. Because the May 2011 VA addendum opinion still failed to provide a nexus opinion with respect to the Veteran s diagnosed disabilities, an additional addendum opinion was obtained in October 2012. After a review of the Veteran s claims file, the examiner opined that the claimed disabilities were less likely than not (less than 50 percent or greater probability) incurred in or caused by the claimed in service injury, event, or illness. The examiner explained that while the Veteran was seen for an acute right knee and ankle sprains while in service in 1991, there was no evidence of a chronic problem with the right knee or right ankle following service resulting from the sprains. The examiner indicated that the Veteran had magnetic resonance imaging (MRI) of the right knee in 2009 which showed meniscal pathology, which was more likely than not related to a post-service event or injury. Additionally, the findings of a healed right distal fibula fracture were noted in 2007 but not seen in a 2001 x-ray of the right ankle. The examiner concluded the degenerative changes in the right ankle were more likely than not related to this post-service injury with fibular fracture. Recent Findings and Analysis - Right Ankle The Veteran was afforded the a new VA examination in March 2014 specifically to address the likelihood that a current right ankle disorder was causally related to the 1991 in-service injury. At the examination, the Veteran reported an initial injury occurring on March 24, 1991, when he bumped his knee on the corner of a door when getting out of a truck, and then jumped down off the truck and twisted his ankle. He reported thereafter being treated for the injury in April 1991, and having continuing pain over the years since the accident. He reported being seen 'steadily' since the injury, and having taken some pain medication including when participating in a research study in 1999. The Veteran reported currently having daily ankle pain of 4/10 severity, and having flare-ups with 10/10 pain which occurred once every three months and lasted five days. He reported some swelling in the ankle and losing all range of motion in the ankle due to pain. The examiner noted that the Veteran presented with a cane and reported that he used a cane regularly to assist with ambulation due to ankle pain. The Veteran denied any emergency room visits, hospitalizations, or loss of work time due to the ankle, but reported numerous clinic visits. The examiner noted that the Veteran had participated in a VA antibiotic treatment study from October 1999 to July 2001, and during that study he had complained of right ankle pain. However, he was evaluated in 2002 for polyarthralgia, and a rheumatologist at the time diagnosed palindromic rheumatism. The March 2014 examiner found full range of motion of the ankle including with repetitive use testing, full strength, and no signs of pain on motion. The examiner found no functional impairment in the ankle, no localized tenderness or pain on palpation, and no laxity or instability. The examiner reviewed the Veteran's records and noted the absence of any indication that the 1991 ankle sprain was chronic or persistent, and also noted that there was no record of an ankle disability subsequently up until his participation in a VA research study from October 1999 to July 2001, with the Veteran not documented to have received treatment for the ankle until 2002. The examiner opined that this long interval "negates any continuity of treatment of the claimed disability from the time of [service] discharge to the present." The examiner concluded that the treatment in April 1991 was for an acute episode of ankle disability, and did not support a chronic condition. More so, the examiner concluded that there was "no evidence to support a permanent residual or chronic disabling condition." The examiner emphasized that current examination of the ankle was "totally within normal limits." The examiner additionally observed that the distal fibula fracture occurred following service, as supported by the x-ray record. While the Veteran is competent to address symptoms of disability as well as past symptoms and treatment, the Board finds the Veteran's account of persistent disability up to the present to be of little credibility. The Veteran's omission of his history of distal fibula fracture following service weighs against the validity of his self-reported history. The absence of objective findings of ankle impairment beyond x-ray findings, with full range of motion demonstrated without observed pain, weakness, or other pathology on testing, as contrasted with the Veteran's complaints of fairly severe pain and impairment of functioning, appear to reflect an over-reporting of symptoms, which also weighs against his credibility as an accurate historian of his right ankle disability. In light of the Veteran's limited credibility, the Board relies more heavily on objective evidence, inclusive of the findings and opinions provided by the VA examiners in May 2011 and March 2014, which were well-informed by careful review of the record and physical examination, as well as review of current and past x-rays. The Board thus finds highly probative the VA examiners' conclusions that the Veteran did not have a persistent ankle disability following the injury in service in March 1991, and that it is not at least as likely as not that a current right ankle disability was incurrent in service or was caused by injury in service in 1991. The Board finds the weight of competent and credible evidence of record to be entirely supportive of these findings and conclusions of the May 2011 and March 2014 VA examiners, which findings and conclusions are consistent with those of the May 2007 VA examiner. The preponderance of the evidence is thus against any ongoing or chronic ankle disability having developed in service, and is against any right ankle disability present during the period of the claim being causally related to service. There is also no evidence beyond the Veteran's assertions to support disability potentially reflecting arthritis of the ankle being present within the first post-service year. The Board accordingly finds the preponderance of the evidence against the claim for service connection for a right ankle disability, and inadequate evidence to support service connection for right ankle arthritis on a first-year-post-service presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Findings and Analysis - Right Knee The claim for service connection for a right knee disability, on the other hand, is supported by a diagnosis of arthritis in service in April 1991, with objective findings at that time to support that diagnosis. The claim is also supported by treatment shortly after service in January 1993 for degenerative arthritis then supported by x-ray findings, and for which treatment was then provided. The Veteran has reported persistence of his right knee arthritis, and intermittent findings from that time up to the present, as well and current clinical findings and complaints. While the Board has found the Veteran's credibility with regard to reported history of disability to be limited, for the right knee such history is support by objective evidence both historically and currently. Accordingly, the preponderance of the evidence supports arthritis of the right knee of service onset. Service connection for right knee disability is thus warranted. 38 C.F.R. § 3.303. ORDER Service connection for a right ankle disability is denied. Service connection for a right knee disability is granted. ____________________________________________ D. HAVELKA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs