Citation Nr: 1755032 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-30 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left hand disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from June 1973 to May 1979. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in May 2015. This matter was originally on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. In November 2014, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. On appeal at that time was the issue of service connection for a right hand disorder; but the right hand disorder was not the hand the Veteran wished to discuss and indicated that he intended to withdraw that issue and instead offer testimony on the issue of service connection for a left hand disorder. In May 2015, the Board also remanded the issue of entitlement to service connection for a left hand disorder and noted that since testimony was taken, the issue would be subject to some development; and if appealed would remain before the undersigned. That issue is considered in the Remand section at the end of this decision. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDING OF FACT A chronic left knee disability was not manifested during service and is not shown to be related to active service; left knee arthritis was not manifested within a year of separation from service. CONCLUSION OF LAW A chronic left knee disability was not incurred in or aggravated by service; left knee arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters Pursuant to the Board's May 2015 Remand, the Appeals Management Center (AMC) obtained all available outstanding treatment records, scheduled the Veteran for a VA examination to determine the etiology of his current left knee disorder, readjudicated the Veteran's claim , and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's May 2015 Remand. Stegall v. West, 11 Vet. App. 268 (1998). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Moreover, during the November 2014 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection The Veteran seeks service connection for left knee degenerative joint disease. At the VA examination in April 2010, the Veteran reported that sometime in 1976 or 1977, he jumped off a deuce and a quarter truck and injured his left knee; that he went for medical care, had x-rays, and given Tylenol; and that his knee had pain and swelling. The Veteran reported that his knee did not get better but he was able to continue his normal PT with no profile. In October 2010, however, the Veteran stated that there were medical records that should show where he was treated while stationed at Davis-Monthan Air Force Base approximately in the Fall of 1978. At the November 2014 videoconference hearing, the Veteran testified that he injured his knee while on maneuvers while stationed at Davis-Monthan Air Force Base in Tucson, Arizona. The Veteran testified that he jumped off a deuce and a quarter truck and landed on some stones. He testified that when he went to the pharmacy, x-rays were taken and he was told that he had chipped part of his knee bone; he was treated with medication and a knee wrap. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether a chronic left knee disorder is factually shown during service. The Board concludes it was not. The Veteran's service treatment records indicate that on July 21, 1975, the Veteran reported having an "infected knee" on Dental Patient History. The Veteran's personnel records indicate that on July 21, 1975, he was with the 432nd Security Police Squadron at Udorn RTAFB, Thailand. Despite a notation on a dental record of an "infected knee," the Board cannot conclude a "chronic" knee condition was demonstrated during service. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In addition, on the clinical examination for separation from service, the Veteran's lower extremities were evaluated as normal. Further, on the Report of Medical History completed by the Veteran in May 1979 in conjunction with his separation physical, he denied ever painful or "trick" knee. Further, on a Prospect Checklist & Preliminary Physical Review form completed in May 1979, he denied ever having any illness or injury, including broken bones, which required treatment by a physician or surgeon, hospitalization or a surgical operation. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Arthritis can be service-connected on such a basis. However, the first showing of left knee arthritis was not within the first year after the Veteran's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Although the Veteran reports continuity of post-service symptoms, the Board finds his allegations to be of limited probative value. The file contains a March 1988 Admission History and Physical Examination by Dr. Dobner in which the Veteran provided a history of knee problems "probably going on for four years." In light of the report by the Veteran of a four-year history of knee problems in 1988 and the lack of any relevant history reported between the Veteran's date of discharge in May 1979 and March 1988 when he was seen by Dr. Dobner, service connection is not warranted under 38 C.F.R. § 3.303(b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the Veteran clearly has left knee degenerative joint disease. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional, however, has ever related this condition to the Veteran's military service. After review of the file and physical examination of the Veteran, the April 2010 VA examiner found that the Veteran's left knee degenerative joint disease was less likely as not caused by or a result of event injury shown in service treatment records. The examiner noted that there was no evidence of a left knee injury, treatment, or diagnosis in the service treatment records. The examiner noted that leg cramps were mentioned on the exit physical examination in 1979 but they were also mentioned on the enlistment physical examination history in 1973. The examiner noted that the Veteran left service in 1979 and that left knee arthroscopic surgery was not until 1985. The examiner stated that without further evidence, the current left knee status post arthroscopy and degenerative joint disease per x-ray were less likely related in any way to service. The Veteran underwent VA examination in September 2016. After review of the file and physical examination of the Veteran, the examiner opined that his left knee arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated: The veteran's [left] knee exam is consistent with severe osteoarthritis. His x[-]ray confirms this, showing severe degenerative tricompartmental joint disease. He complain[]s of stiffness [and] pain. He has decreased [range of motion] on exam [and] an antalgic gait. However, review of the veteran's [service treatment records] show NO documentation of any injury or arthritis starting while in service. Although the veteran claims he jumped off a "deuce & a half" [and] hit the ground with his [left] knee, there is no documentation of any medical visit or x[-]ray done for this injury. In fact, the only mention of a knee found in service was a dental questio[n]naire where the veteran says he had an "infected knee." (no records found to substantiate this statement). The injury was apparently acute & transitory, as his Exit physical history shows he stated "NO" to painful or trick joint, & no to joint injury. The exam was marked normal. Furthermore, there is no evidence to establish continuity after he left service in 1979. There are no records stating he had any further [left] knee medical care until 1988, 9 years after service, in which the record states "history of knee problems for 4 years." In the meantime, he did, ([and] still does) work as a heavy equipment operator. Without evidence of record for a [left] knee injury while in service, or showing of a chronic condition with continuity of symptoms either during or after service, there is NO competent evidence of a nexus between the veteran's claim of [left] knee injury while in service, [and] his current [left] knee osteoarthritis some 37 years later. More than likely his current [left] knee condition of osteoarthritis is the result of many years of manual labor operating heavy machinery, plus aging, with wear [and] tear over time. The Board considered the Veteran's own opinion that his left knee degenerative joint disease is related to active service. In this case, the Board does not find him competent to provide an opinion regarding the etiology of his left knee pain as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran and his wife therein cannot be accepted as competent medical evidence. Thus, the record is absent competent evidence of a chronic left knee disorder during active service, competent evidence of left knee arthritis within the year following service, credible evidence of continuity of symptomatology, and competent evidence of a nexus between service and his currently diagnosed left knee degenerative joint disease. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for a left knee disability is denied. REMAND As noted above, in November 2014, the undersigned took testimony on the issue of service connection for a left hand disorder; and in May 2015, the Board also remanded the issue of entitlement to service connection for a left hand disorder. The Board noted that since testimony was taken, the issue would be subject to some development; and if appealed would remain before the undersigned. The Board directed that the RO should undertake adjudication of the issue of service connection for a left hand disorder; that all indicated development should be undertaken; and that thereafter, a rating action should be taken and notice of appeal rights provided in accordance with applicable procedures as needed. In a January 2017 rating decision, the RO denied service connection for a left hand condition. In an August 2017 Appellant's Brief, the Veteran's representative noted that the issues presented for review included the issue of service connection for a left hand condition. The representative noted that the Veteran had contended through the appeal process that he hurt his hand while in the service and that was substantiated by his service treatment records and future exams have shown that he has some arthritis in his hand. The Board construes the August 2017 Appellant's Brief as a Notice of Disagreement with the January 2017 rating decision. The RO must now issue a Statement of the Case and the Veteran provided an opportunity to perfect his appeal as to this issue. Therefore, the appropriate Board action is to remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The Veteran and his representative should be provided a Statement of the Case as to the issue of entitlement to service connection for a left hand disability. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs