Citation Nr: 1611723 Decision Date: 03/23/16 Archive Date: 03/29/16 DOCKET NO. 14-24 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a respiratory disability, to include shortness of breath, chronic cough, and asthma. 3. Entitlement to service connection for a heart disability, to include congestive heart failure. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from July 1999 to October 1999, with subsequent periods of ACDUTRA, and served on active duty from January 2004 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case has since been returned to the RO in Los Angeles, California. Although the issues certified to the Board were for a chronic cough, respiratory disability (claimed as shortness of breath), cardiac disease, and left knee arthritis, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues have been recharacterized as reflected on the title page to comport with the record. The issues of entitlement to service connection for a respiratory disability and entitlement to service connection for a heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence does not demonstrate that the Veteran's current left knee strain with degenerative joint disease was incurred during a period of ACDUTRA; nor has it been shown to have manifested within one year of separation of active service, had its onset during active duty service, or is otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice requirements have been satisfied by letters in May 2011 and May 2013. The Board concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file. In addition, the Veteran underwent a VA examination for her left knee in July 2011, with a subsequent addendum opinion provided in May 2013. In May 2013, the RO issued a formal finding on the unavailability of the Veteran's service treatment records from January 2004 to September 2004. The RO listed the efforts to obtain the Veteran's service treatment records, explained that all efforts to obtain the needed information had been exhausted, and stated that any further attempts would be futile. In response, the Veteran provided copies of the service treatment records that she had in her possession. When service treatment records are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). All methods appear to have been exhausted in attempting to obtain the missing service treatment records, which are unavailable for consideration. The Board finds no basis for further pursuit of these records, as such efforts would be futile. 38 C.F.R. § 3.159(c)(2), (3). In light of the efforts discussed above, VA has met its heightened obligation to satisfy the duty to assist. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. II. Service Connection The Veteran contends that her current left knee disability incurred during her basic training in 1999, a period of ACDUTRA. See February 2011 VA Form 21-526 and July 2011 VA examination. In addition, the Veteran argues that she has had continuous left knee symptoms since her period of ACDUTRA, which would include her active duty service from January 2004 to September 2004. See July 2011 VA examination. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for chronic diseases may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Under VA law, "veteran" status must be established as a condition of eligibility for service connection benefits with respect to any period of ACDUTRA or INACDUTRA associated with enlistment in a Reserve component of one of the Armed Forces. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status") (citing Cropper v. Brown, 6 Vet. App. 450, 452 (1994)); see also 38 U.S.C.A. §§ 1110, 1131. The fact that a claimant has established status as a veteran for purposes of other periods of service does not obviate the requirement for establishing veteran status for purposes of the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service." 38 U.S.C.A. § 101(2) (West 2014); 38 C.F.R. § 3.1(d) (2015). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) ; 38 C.F.R. § 3.6(a) (2015). The term "active duty" means full-time duty in the Armed Forces, other than active duty for training. 38 C.F.R. § 3.6(a). The term "active duty for training" includes, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training purposes, and certain full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Thus, in order to establish veteran status with respect to service in the Reserves or National Guard, and therefore eligibility for service connection, the record must establish that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. See Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Certain presumptions that apply to periods of active duty are inapplicable to periods of ACDUTRA and INACDUTRA, such as the presumptive incurrence or aggravation of conditions that are considered chronic, per se, if initially manifested to a compensable degree (meaning to at least 10-percent disabling) within the initial post-service year, or regarding the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). The presumption of soundness will apply to a period of ACDUTRA only if "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period of ACDUTRA. Id. The Veteran is service-connected for cyclical edema which occurred during her basic training (July 1999 to October 1999), a period of ACDUTRA under 38 C.F.R. § 3.6(c), which qualifies as "active" service and confers "Veteran status" for that period of ACDUTRA. 38 U.S.C.A. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a) . A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Military personnel records reflect that the Veteran had a period of initial ACDUTRA for basic training from July 1999 to October 1999. Service treatment records (STRs) in August 1999 document two reports of left knee pain. The Veteran complained of left knee pain for the past one and half weeks, which she believed was caused by running, jumping, and marching. The Veteran was diagnosed with left knee strain. Subsequent service treatment records from 1999 to 2004 do not document any further complaints or treatment for left knee problems. Private treatment records from June 2008 to July 2008 document the Veteran's treatment for left knee symptoms. After twisting her left knee while helping to move furniture, the Veteran was diagnosed with a left knee sprain. The Veteran returned for treatment after having been off from work for one week with left knee pain. An x-ray showed that the Veteran's left knee had minimal narrowing of the medial joint space consistent with early degenerative changes. A July 2008 private treatment record reflects that the Veteran had a possible left knee meniscal tear medial and especially lateral. In July 2011, the Veteran underwent a VA examination. The Veteran reported having left knee symptoms, including stiffness, swelling, giving way, and pain, for the past 11 years, which had started during her basic training. Following an objective evaluation, including an x-ray, the VA examiner diagnosed the Veteran with left knee strain with degenerative joint disease (DJD). Based on the finding that the Veteran had been assessed twice for left knee symptoms in August 1999 and that the Veteran had undergone normal age-related degeneration, which contributed to her symptoms, the VA examiner opined that her left knee was at least as likely as not related to military service. In May 2013, the Veteran was afforded a VA opinion. Upon review of the Veteran's claims file and recent examination, the VA examiner noted that the Veteran had knee pain during service in 1999, but opined that it was less likely than not that the Veteran's current knee disability was related to her brief and limited symptoms of knee pain in 1999. The Veteran did not provide any further evidence of treatment for her left knee until August 2015. An August 2015 private treatment record documents that the Veteran was treated for persistent left knee pain and had undergone a MRI of her left knee which revealed a torn medial meniscus. Based on a careful review of the clinical and subjective evidence, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran's claim for service connection for a left knee disability. The evidence shows that the Veteran has a current diagnosis for left knee strain with mild DJD. Furthermore, the record reflects the Veteran's two complaints of left knee pain with a diagnosis for left strain in 1999 during a period of ACDUTRA. Therefore, the first question is whether the Veteran's current left knee disability was incurred during her basic training, a period of ACDUTRA, where she sustained a left knee strain. The record includes conflicting medical opinions as to the etiology of the Veteran's current left knee disability. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that the May 2013 VA opinion is the most probative as it provides a rationale that is more consistent with the evidence of record. The May 2013 examiner found no basis upon which the Veteran's complaints of left knee pain in 1999 were related to her current left knee disability. By contrast, the July 2011 VA examiner found that there was a link, despite the lack of documented complaints for knee problems until 2008, almost 10 years after her initial complaints. Indeed, in 2008, the Veteran only reported having knee problems after twisting her knee while moving furniture. Notably, the record includes subsequent medical records from 1999 to 2004 for the treatment of other conditions, but at no time did the Veteran continue to report any knee problems. Therefore, the Board finds that the July 2011 VA examiner's opinion to be less persuasive, because it appears to be based solely on the Veteran's assertions and ignores the clinical evidence. The Veteran is competent to report her history of left knee symptoms, however, the Board finds that her account is not credible. At her July 2011 VA examination, the Veteran asserted that she has had continuous left knee symptoms since basic training. Nevertheless, the Veteran did not seek any treatment for left knee problems until 2008, at which point, she failed to report any prior history of knee problems. Significantly, the Veteran did not report her continuous history of knee problems until her July 2011 VA examination. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). To the extent that the Veteran argues that her left knee disability is etiologically related to her active duty service (January 2004 to October 2004), the preponderance of the evidence weighs against her claim. The only evidence presented that the Veteran had any left knee symptoms during her active duty service are the Veteran's lay statements made during her July 2011 VA examination. In this regard, the Veteran does not indicate that she sought medical care or treatment for the left knee during active duty service, so the absence of STRs from the time period is of no consequences. In any case, as discussed above, the Board has already found those statements to be not credible. Thus, the Board finds that the Veteran is not entitled to service connection for a left knee disability on a direct basis. Additionally, the Board finds that the Veteran is not entitled to service connection on a presumptive basis. The Veteran has a current diagnosis for left knee arthritis, however, the evidence does not show that the Veteran's arthritis manifested within one year of separation from either her period of ACDUTRA or her active duty service. Notably, a June 2008 VA x-ray report found only minimal and early evidence of DJD in the Veteran's left knee. Furthermore, the record does not include any competent and credible evidence of continuity of symptomatology of left knee symptoms since her active service. Therefore, the Board finds that the evidence does not warrant presumptive service connection for a left knee disability. In summary, the Board finds that the preponderance of the evidence shows that the Veteran's current left knee strain with mild DJD was not incurred during a period of ACDUTRA, nor is it etiologically related to her active duty service. Furthermore, the preponderance of the evidence does not show that the Veteran's left knee strain with mild DJD warrants service connection on a presumptive basis. Consequently, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a left knee disability is denied. REMAND The Veteran is seeking service connection for a respiratory disability, to include shortness of breath, chronic cough, and asthma, and a heart disability, to include congestive heart failure. Unfortunately, a remand is required in this case for the issues remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. With regard to her service connection claim for a respiratory disability, the Veteran noted that her respiratory problems, claimed as shortness of breath and chronic cough, began in August 1999, a period of ACDUTRA. In addition, the Veteran asserts that her "chronic cough is the underlying cause from [congestive heart failure]." See February 2011 claim, November 2013 Notice of Disagreement and June 2014 VA Form 9. STRs document the Veteran's complaints of respiratory problems. A September 1999 STR reflects that the Veteran, after basic training exercise, presented with bilateral lower extremity edema and reported shortness of breath with minimal exertion. Following an electrocardiogram (EKG) and echocardiogram (ECHO), the Veteran was diagnosed with right sided heart congestion with bilateral lower extremity edema. A January 2004 Annual Medical Certificate noted that the Veteran had dyspnea and fatigue with moderate exertion, including running and going up several flights of stairs. A February 2004 Emergency Care and Treatment Record reflects that the Veteran presented with a complaint of having a cough for the past week. The Veteran was diagnosed with bronchitis. A September 2004 Report of Medical Assessment documents that the Veteran complained of dyspnea on exertion upon two flights of stairs. Private treatment records from 2006 to 2010 document that the Veteran reported symptoms of cough and sinus and nasal congestion, which were diagnosed as allergic rhinitis, sinusitis, upper respiratory infection and asthma. In a July 2013 statement, the Veteran's private treating physician, Dr. P.K.S., noted that he had been treating the Veteran since 2011 for congestive heart failure, asthma and allergies. Based on her conditions, Dr. P.K.S. found that the Veteran would be unable to walk one flight of stairs without getting shortness of breath. There is no specific and direct correlation made between the Veteran's shortness of breath and her asthma diagnosis. Nevertheless, the Board finds that further development of the Veteran's claim is required. The evidence shows that the Veteran had been complaining of shortness of breath with exertion during her period of ACDUTRA and her active duty service. Furthermore, the evidence shows that the Veteran currently had symptoms of shortness of breath with exertion and a diagnosis for asthma. As the evidence suggests that the Veteran's in-service respiratory symptoms may be related to her currently diagnosed asthma, a remand to provide a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regards to the Veteran's service connection for a heart disability, the Veteran asserts that her currently diagnosed congestive heart failure began during basic training in 1999, a period of ACDUTRA. See February 2011 VA Form 21-526. In July 2011, the Veteran was afforded a VA examination to determine the etiology of any current heart disability. The VA examiner found that the Veteran's chest x-ray and EKG was normal. No stress test was performed because it was medically contraindicated due to poor exercise tolerance. The VA examiner stated that no diagnosis or etiology opinion could be provided because the Veteran's ECHO was pending. The record reflects that a July 2011 ECHO report is included in the claims file, however, there has been no attempt to provide a diagnosis and opinion. Therefore, the Board finds that a remand to obtain an addendum to the July 2011 examination is required. 38 U.S.C.A. § 5103A(d) (West 2002); 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). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all of the Veteran's outstanding treatment records for the Veteran's respiratory disability and heart disability that are not currently of record. 2. Then, the AOJ should schedule a VA examination for the Veteran's claimed respiratory disability to determine the nature and etiology of the Veteran's currently diagnosed respiratory disability, to include asthma. The claims file, including a copy of this REMAND, should be made available to the examiner for review. The examiner should respond to the following questions: Is it at least as likely as not that the Veteran's respiratory disability, to include asthma, is related to any period of ACDUTRA, to include the Veteran's basic training from July 1999 to October 1999, or her active duty service from January 2004 to September 2004? Why or why not? 3. Then, the AOJ should provide the Veteran's claims file to the July 2011 VA examiner, or another examiner if he is not available, and request that an addendum be provided as follows: a. Review the July 2011 ECHO report and provide a diagnosis for any current heart disability. b. Then, provide an opinion as to whether the Veteran's current heart disability is at least as likely as not related to any period of ACDUTRA, to include the Veteran's basic training from July 1999 to October 1999, or her active duty service from January 2004 to September 2004. Why or why not? The examiner shall review the claims file and medical records in conjunction with the evidence of record. If an examination is deemed necessary to render the diagnosis and opinion requested, such examination shall be arranged. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Then, the AOJ should readjudicate the claims. If the benefits sought on appeal remand denied, in whole or in part, the Veteran should be provided with a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs