Citation Nr: 1753909	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  07-26 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for a bilateral knee disability.

2. Entitlement to a rating in excess of 30 percent for depressive disorder, not otherwise specified (NOS).

3. Entitlement to a compensable initial rating for a left ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served in the Puerto Rico Army National Guard and Army Reserves, with periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), including a period of ACDUTRA from May 1983 to July 1983.  He also served on active duty from January 1991 to April 1991 and from January 2003 to February 2005, with service in Southwest Asia.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico.  In March 2006, the RO denied entitlement to service connection for a bilateral knee disability.  In September 2011, the RO denied entitlement to a rating in excess of 30 percent for depressive disorder NOS.  In October 2011, the RO granted service connection for left ear hearing loss and assigned an initial rating of 10 percent, effective April 4, 2011.

The issue of entitlement to service connection for a bilateral knee disability was previously before the Board in July 2009, October 2010, September 2011, October 2012, and May 2013, when it was remanded for further evidentiary development.  There has been substantial compliance with the Board's remand directives as to this issue.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).

In May 2013, the Board also remanded the issues of entitlement to increased ratings for depressive disorder NOS and left ear hearing loss for the issuance of a statement of the case (SOC).  While no VA Form 9 was filed within 60 days of the SOC, the Board finds that the August 2016 Form VA 646 Statement of Accredited Representative in Appealed Case may be construed as a substantive appeal to the issues addressed in the July 2016 SOC.  Therefore, the Board has jurisdiction over these issues.  Unfortunately, for the reasons discussed below, another remand is required as to these issues.

The issues of entitlement to increased ratings for depressive disorder NOS and left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

With resolution of any doubt in his favor, the Veteran's current arthritis of the bilateral knees manifested to a compensable degree within one year of his discharge from active service and is presumed to have been incurred during service. 


CONCLUSION OF LAW

The criteria for service connection for arthritis of the bilateral knees have been met.  38 U.S.C. §§ 1110, 1112, 1113, 5103(a), 5103A, 5017(b) (West 2014); 38 C.F.R. 3.303, 3.307, 3.309(a) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017).  Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection - Laws and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017).  

The term "active military, naval, or air service" includes active duty, and "any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C. § 101(24) (West 2014); 38 C.F.R. § 3.6(a) (2017).  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22) (West 2014); 38 C.F.R. § 3.6(c) (2017).  INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23) (West 2014); 38 C.F.R. § 3.6(d) (2017).

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In this case, the Veteran has been diagnosed with arthritis.  Arthritis (degenerative joint disease) is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

If a chronic disorder manifests to a degree of 10 percent disabling or more within one year from the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307, 3.309(a). 

While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465, 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b) (West 2014); 38 C.F.R. 
§ 3.102 (2017).

Service Connection Claim for Bilateral Knee Disability - Analysis

The Veteran contends that his current bilateral knee disability is related to or caused by service.

The Board finds that the January 2003 Report of Medical Examination for the purpose of retention in the National Guard may be reasonably construed as an entrance examination for his period of active service from January 2003 to February 2005, as it was performed 10 days prior to his entrance to active service and can be considered "contemporaneous" with entry to that period of active service.  No knee disease or injury was noted on the January 2003 entrance examination.  Therefore, he is presumed to have been sound upon entry to active service in January 2003.

An April 2005 VA x-ray report indicates that the Veteran had "minimal degenerative changes involving the patellofemoral joint spaces bilaterally," i.e., arthritis.  

As the Veteran was diagnosed with arthritis of the bilateral knees within one year of his separation from active service, the only remaining question is whether the arthritis manifested to a compensable degree within one year of his separation from active service.  The knee is considered a major joint for the purpose of rating disability from arthritis.  38 C.F.R. § 4.45.  Under 38 C.F.R. § 4.71a, DC 5003, a compensable rating is warranted with x-ray evidence of arthritis of 2 or more major joints.  Based on the April 2005 x-ray report indicating that the Veteran had arthritis of the bilateral knees, the Board finds that the Veteran's arthritis of the bilateral knees manifested to a compensable degree within one year from the date of his separation from active service.  Therefore, the arthritis of the bilateral knees is presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).


ORDER

Service connection for arthritis of the bilateral knee is granted.


REMAND

Pursuant to the Board's May 2013 remand directives, the RO issued a SOC in July 2016 as to the issues of entitlement to increased ratings for depressive disorder NOS and left ear hearing loss.  However, the July 2016 SOC only included a partial procedural history of the appeal, starting with the May 2013 Board remand.  In addition, the list of evidence in the SOC does not include all of the relevant evidence of record, such as the November 2006 VA audiological examination report and July 2011 VA PTSD examination report.  

A SOC must be complete enough to allow the Veteran to present adequate argument before the Board.  38 C.F.R. § 19.29. 
 
In this case, the July 2016 SOC is inadequate for this purpose; as such, remand is necessary so that the Veteran can be provided with a supplemental statement of the case that includes a that includes a complete procedural history and a complete list of relevant evidence as to the issues of entitlement to increased ratings for depressive disorder NOS and left ear hearing loss.

Accordingly, the case is REMANDED for the following action:

Issue a SSOC in accordance with 38 C.F.R. § 19.29 (2017) regarding the issues of entitlement to increased ratings for depressive disorder NOS and left ear hearing loss.  Afford the Veteran and his representative a reasonable opportunity to respond.  Then, return the case to the Board for further appellate review.

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. §§ 5109B, 7112 (West 2014).




______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs