Citation Nr: 1615854 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 99-23 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to an effective date prior to September 21, 2015, for the grant of service connection for radiculopathy of the bilateral upper and lower extremities. 3. Entitlement to an effective date prior to September 21, 2015, for entitlement to basic eligibility to Dependents' Educational Assistance. 4. Entitlement to an effective date prior to September 21, 2015, for entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 1999, March 2004, and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified via video-conference before a Veterans Law Judge in an August 2008 hearing. A transcript of that hearing is associated with the claims file. Unfortunately, the judge who conducted that hearing has since retired from the Board. The Veteran requested an additional hearing before a Veterans Law Judge who would render a determination in his case, but withdrew that request in August 2014. In September 2004, the Board remanded the issue of whether new and material evidence had been received to reopen the issue of entitlement to service connection for a left knee disorder (previously denied by the RO in July 1999). A June 2006 Supplemental Statement of the Case (SSOC) continued the denial. In December 2006, the Board found that new and material evidence had been submitted, reopened the Veteran's claim, and remanded the issue of entitlement to service connection for a left knee disorder for further development. Specifically, the Board remanded the claim so as to obtain an opinion as to whether a current left knee disorder was either incurred or aggravated during the Veteran's period of active service. The Board addressed this issue once again in January 2009. At that time, it was noted that an April 2007 VA examiner failed to discuss the Veteran's assertions that he suffered from left knee problems from separation onward (which related to a documented, in-service knee injury). As a result, an additional VA examination was requested in this matter. That examination was conducted in June 2009. In January 2010, the Veteran's representative asserted that the June 2009 VA examination report was inadequate for failing to address whether the Veteran had a pre-existing left knee injury which was aggravated during service, and in February 2010, the Board denied the Veteran's claim on the basis that the left knee was normal at separation, and that medical evidence of record failed to show that any current left knee disorder was related to his period of active service. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Remand (JMR) noting that the January 2010 letter was not addressed in the Board's February 2010 decision. The Court granted the JMR, and the matter was remanded to the Board for further action. In October 2012, the Board issued a decision which denied service connection for a bilateral leg condition and TDIU. Importantly, the Veteran's left knee claim was not addressed at that time, or at any point thereafter. As such, the matter remains on appeal and will be addressed herein. The Board further notes that, in a January 2016 notice of disagreement, the Veteran indicated his disagreement with the assignment of a September 21, 2015 effective date for the following: service connection for radiculopathy of the bilateral upper and lower extremities, entitlement to basic eligibility to Dependents' Educational Assistance, and TDIU. Pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), these matters must be remanded to the originating agency for the preparation of a Statement of the Case (SOC). The issues of earlier effective dates prior to September 21, 2015, for service connection for radiculopathy of the bilateral upper and lower extremities, entitlement to basic eligibility to Dependents' Educational Assistance, and TDIU are therefore addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against the conclusion that it is at least as likely as not (50 percent or greater) that the Veteran's left knee disorder had its onset in or is otherwise attributable to service. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As for the duty to assist, service treatment records and pertinent post-service medical records have been obtained, to the extent available. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). A June 2009 VA examination report discussed all applicable medical principles and medical treatment records relating to the issue discussed herein, and the analysis is considered adequate upon which to decide the claim at issue; the duty to assist requirement has been satisfied. While the Veteran's representative has objected to the adequacy of the opinion in a January 2010 brief, based on the fact that the examiner failed to opine as to whether an in-service left knee injury aggravated a pre-existing left knee disorder, the record (as discussed in detail below) indicates that the Veteran was sound on entrance to active service. Therefore, the VA examiner had no duty to provide such an opinion, and the examination is deemed to be adequate for rating purposes. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Board notes that the Veteran has claimed entitlement to service connection for a left knee disorder to include a strain, meniscal tear, and degenerative arthritis, attesting that such was caused or aggravated during his period of active service. To that end, the United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for chronic disabilities, such as arthritis, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that a Veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Here, the presumption of soundness attaches. On the Veteran's January 1974 enlistment examination report, his lower extremities were found to be normal. As such, despite a later report of a sixth grade knee surgery, the Veteran is presumed to have been in sound condition at the time of entrance. VA could undertake an effort to rebut the presumption of soundness, by showing both that a left knee disability clearly and unmistakably pre-existed service and that it clearly and unmistakably was not aggravated by service, but such is not necessary in this case. Because the Veteran is presumed to be sound at entry with regard to his left knee, this case hinges upon whether a current left knee disorder was incurred during, caused by, or otherwise related to his period of active service. The evidence of record supports three current diagnoses for the left knee, to include left knee strain, a left meniscus tear, and degenerative arthritis. As such, the first criterion necessary for service connection has been met. Turning to the Veteran's period of active service, his January 1974 entrance examination was negative for any disorder of the lower extremities. A note on December 18, 1974, indicated that the Veteran complained of pain in the left knee for one year, and also noted that he had an operation on the left knee when he was in sixth grade. The Veteran reported left knee pain, which caused difficulty with walking, after falling on the knee. He reported with a small laceration and no swelling. He was returned to active duty with no left knee disability diagnosed. On his Report of Medical History upon separation in June 1975, the Veteran specifically denied having a trick or locked knee, denied having swollen or painful joints, and denied having cramps in his legs. On examination, his lower extremities were normal and no defects were found. Post-service, in May 2002, a VA compensation examiner offered a diagnosis of chronic left knee strain due, in part, to an in-service left knee injury. The physician noted the Veteran's reported pre-service left knee injury, as well as the in-service left knee injury. No rationale was provided. In April 2007, a VA examiner offered a diagnosis of left knee medial meniscal tear. The examining physician reviewed the history of the claim and noted post-service left knee injuries, but no in-service left knee injury. The examiner omitted any mention of the May 2002 diagnosis/opinion and dissociated the medial meniscal tear from active military service, based on a history of post-service knee trauma. In June 2009, the April 2007 VA physician again examined the Veteran's left knee and noted that x-rays indicated minimal left knee degenerative joint disease. The examiner noted evidence of documented left knee trauma during active service, stating that the Veteran "fell and injured and bursted [sic] his left knee with bleeding" during service, at which time he was treated with pain medication. The injury did not require surgery. The examiner determined that it was less likely that the Veteran's current, minimal degenerative disease of the left knee was related to military service, as there was no evidence to support a severe injury. Instead, only a small laceration due to a fall was noted in December 1974. The laceration was treated with dressing and the Veteran was returned to duty. It was further noted that the separation examination was entirely negative for any disorder of the left knee. Instead, per the examiner, the Veteran's current left knee disorder was most likely age-related, and further noted that the Veteran's prior occupation as s truck driver caused increased wear and tear to the joint. As the Board noted previously, an opinion as to whether a pre-existing left knee disorder was aggravated during the Veteran's period of service is not necessary in this case, as the Veteran is presumed to have been in sound condition upon entrance. As to the additional argument by the Veteran's representative in January 2010, namely that a medical evaluation should include an examination of the disability caused by painful motion, the Board points out that such would only be necessary in cases where the Veteran's disability was already service connected. Manifestations of non-service-connected disorders have no bearing on this case, and such arguments carry no weight as to the determination of the adequacy of the June 2009 VA examination of record. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on the etiology of the Veteran's left knee disability. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. With regard to the conflicting opinions of record, the Board notes that the May 2002 medical opinion merely states "Chronic strain of left knee secondary to repeated fall injuries prior to military service and in military service." No rationale is provided in support of that opinion. Regarding the later diagnoses of medial meniscus tear and degenerative joint disease, these diagnosed disorders have been not been linked to military service by competent medical evidence. The June 2009 medical opinion is based on an accurate in-service history and is supported by a full rationale. As noted, the examiner determined that the Veteran's in-service injury was acute and not severe, and it was further indicated that the Veteran's left knee was normal at separation. As such, this opinion carries more probative weight in this case. With regard to the Veteran's statements during the course of his appeal in which he attributed his claimed condition to his stint in service, the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran is certainly competent to recount a history of left knee pain, as such is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not shown that he is competent to make a complex medical determination involving the etiology of a left knee disorder, and his attestations are not supported by the most probative medical evidence of record. In sum, the more probative and competent evidence is against a finding that the Veteran's claimed disorder was caused or aggravated during his period of active duty. The Board notes that the Veteran's service treatment records are silent as to a diagnosis of any chronic left knee disorder. Further, there is no evidence of record to indicate that any such disorder was diagnosed within one year following separation from service. To the extent the Veteran asserts that he has had a left knee disability continuously since service, the fact remains that at separation he specifically denied any knee problems, and no knee problems were identified on examination. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Appellant's claim, and as such entitlement to service connection for a disorder of left knee is denied. ORDER Service connection for a left knee disorder is denied. REMAND In November 2015, the RO granted entitlement to TDIU, Dependents' Educational Assistance, and service connection for radiculopathy, each effective September 21, 2015. Within one year of notification of that decision, in a January 2016 notice of disagreement, the Veteran indicated his disagreement with the assignment of a September 21, 2015 effective date for the following: service connection for radiculopathy of the bilateral upper and lower extremities, entitlement to basic eligibility to Dependents' Educational Assistance, and TDIU. Following a search of the Virtual VA and VBMS electronic records systems, a statement of the case has not been prepared for these issues. The Board finds that the January 2016 filing constitutes a timely Notice of Disagreement with regard to these issues. 38 C.F.R. § 20.201 (2015). A statement of the case should be provided. Accordingly, the case is REMANDED for the following action: Furnish the Veteran and his representative with a Statement of the Case pertaining to the November 2015 assignment of an effective date of September 21, 2015, for the grant of entitlement to TDIU, Dependents' Educational Assistance, and service connection for radiculopathy. The Veteran should be appropriately notified of the time limits to perfect his appeal of these issues. These issues should not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal following issuance of an SOC. 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs