Citation Nr: 1801577 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-18 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury. 2. Entitlement to an increased rating for chronic low back strain in excess of 20 percent prior to October 1, 2014 and in excess of 10 percent from October 1, 2014. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1980 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In the October 2011 rating decision, the RO denied service connection for residuals of a right knee injury. In the July 2014 rating decision, the RO reduced the evaluation of the Veteran's service-connected chronic low back strain from 20 percent disabling to 10 percent disabling, effective October 1, 2014. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The issue of entitlement to an increased rating for chronic low back strain in excess of 20 percent prior to October 1, 2014 and in excess of 10 percent from October 1, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record shows that a right knee injury was not manifested during service or within one year after service and such disorder is not otherwise shown to be a result of service. CONCLUSION OF LAW The criteria for establishing service connection for residuals of a right knee injury have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In a June 2011 letter, VA notified the Veteran of the evidence required to substantiate his claim. The Veteran was informed of the evidence VA would attempt to obtain and of the evidence that the Veteran was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). Generally to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.§ 5107 (b); 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis The existence of a present disability is established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. These records contain a diagnosis of a right knee condition, variously diagnosed as degenerative joint disease, degenerative osteoarthritis, knee arthralgia, and total knee arthroplasty. Service treatment records (STRs) indicate an in-service injury. However, the remaining inquiry is whether the evidence demonstrates the incurrence of a right knee condition in service or as a result of service. Upon review of the evidence, the Board concludes that the evidence of record is against a finding that the Veteran's right knee condition is related to service. A February 1976 STR indicated that the Veteran was diagnosed with a possible bone contusion to the right knee. The Veteran experienced trauma to both patellas after falling on rocky terrain during a training exercise. The Veteran's right knee showed little redness and the examiner explained that there was no ligament involvement with the right knee cap. The Veteran's separation examination reports revealed no abnormalities that were attributed to a right knee condition. On a March 1991 redeployment examination report of medical history, the Veteran endorsed "yes" for swollen or painful joints and cramps in legs; but, endorsed "no" for trick or locked knee. A February 2011 VA treatment record indicated that the Veteran reported bilateral knee pain. In September 2011, the Veteran was afforded a VA examination. The Veteran's February 1976 right knee contusion diagnosis was confirmed, along with reported calf pain that was diagnosed in 1991. The Veteran reported that he injured both knees in a 1979 fall, in which he struck both knees on a metal plate. The Veteran was offered exploratory surgery but declined. The Veteran reported that he experienced constant, unremitting pain over the anterior patella in both knees. The VA examiner reviewed the Veteran's claims file and conducted an in-person examination. The examiner rendered the clinical assessment that it is less likely as not that the Veteran's bilateral knee conditions were caused by or a result of his service. The examiner opined that STRs showed treatment for bilateral patellar contusions in February 1976 and a second left knee contusion in July 1977 with normal x-rays. No further complaints or treatments were noted in the STRs. Both of the Veteran's separation examination reports did not show complaints of knee injuries. A right knee contusion and two episodes of left knee contusion were treated and resolved with no chronicity noted. The examiner concluded that a nexus was not established. A March 2012 VA treatment note indicated that the Veteran reported persistent right knee pain. The Veteran was diagnosed with degenerative joint disease, right knee, and received a cortisone injection in the right knee. The treating physician opined that the Veteran's right knee degenerative changes were at least as likely as not related to the Veteran's right knee injury while in service. In December 2013, the Veteran was afforded another VA examination. The Veteran was diagnosed with degenerative osteoarthritis of the right knee. The Veteran reported that he sustained a right knee injury after falling on a metal object in service. The Veteran reported aggravating his right knee injury during physical training while in the Army Reserves. After an in-person examination, but without reviewing the Veteran's claims file, the VA examiner opined that the Veteran's in-service right knee injury, although not confirmed by any means, must have caused concern for internal derangement because the Veteran was offered exploratory surgery. The examiner explained that chronicity of the Veteran's right knee condition was based solely on the Veteran's statements and that current findings of degenerative osteoarthritis could be plausibly explained by a possible internal derangement sustained during service. In an April 2014 addendum medical opinion and after reviewing the Veteran's claims file, the examiner opined that the Veteran's right knee condition is less likely as not related to trauma the Veteran incurred in-service. The rationale being that the Veteran's right knee condition, noted in service, was acute and likely resolved without residual injury. The examiner explained that his clinical assessment was supported by the lack of documentation of a right knee condition thereafter. According to the examiner, VA records diagnosed the Veteran with degenerative osteoarthritis of the right knee in 2012, 30 years after the acute right knee condition in service. The examiner ultimately concluded that, without a reasonable alternative explanation, the Veteran's current right knee condition is most consistent with age and the natural process of osteoarthritis. The Veteran asserted, in a June 2014 Statement in Support of Claim, that he was informed by a military physician during his 1980 ETS examination that the physician could not determine the extent of his knee injury "inside the knee caps." In March 2015, the Veteran underwent private chiropractic treatment. The treatment note indicated that the Veteran reported falling in December 2014 due to weakening legs. The Veteran reported that his legs "gave out" and that he experienced periodic instability and pain. An April 2015 VA treatment note indicated that the Veteran was diagnosed with knee arthralgia. An October 2015 private treatment note indicated that the Veteran was diagnosed with osteoarthritis of both knees. The Veteran reiterated his experience of intermittent instability, falling, and chronic right knee pain. The Veteran reported receiving a steroid injection in the right knee 2 years prior, which provided temporary relief. The Veteran was prescribed a knee brace that he reported provided only slight relief. In June 2016, the Veteran underwent right total knee arthroplasty. During the June 2017 Board hearing, the Veteran testified that injured his knee in a fall in the Korean DMZ in 1973 and 6 months before separating from service. The Veteran testified that he experienced intermittent right knee pain since separating from active duty in 1980. The Veteran also testified that his right knee condition was "pretty good. . . pretty decent" after separation. The Veteran reported having arthroplasty surgery in June 2016, cortisone injections, and worsening right knee instability with age. In several statements, the Veteran claimed that he treated his right knee pain with NSAIDS pain medication after his in-service injury and that he could not bend his right leg without pain. Upon review of the foregoing evidence, the Board finds that service connection for residuals of a right knee injury is not warranted. In so finding, the Board considers the December 2013 VA examination report and April 2014 addendum medical opinion. The April 2014 examiner conducted an in-person examination of the Veteran, reviewed the Veteran's claims file, and rendered the clinical assessment that the Veteran's right knee condition was less likely than not incurred in or caused by the Veteran's service. Notably, the examiner determined that the Veteran's right knee injury was acute and likely resolved without residual injury. The examiner emphasized the fact that the Veteran was not diagnosed with degenerative osteoarthritis of the right knee in until 2012 and attributed the Veteran's right knee condition to his age and the natural process of osteoarthritis. It is well established that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, when reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). As such, the April 2014 addendum medical opinion is afforded significant probative value as the examiner conducted an in-person examination, reviewed the Veteran's claims file, and provided an adequate explanation of his medical conclusion. The April 2014 addendum medical opinion speaks to the issue at hand, whether the Veteran's right knee condition was incurred in or related to service. Conversely, the Board finds the March 2012 VA medical opinion inadequate as the physician did not provide an adequate explanation of his medical opinion regarding the etiology of the Veteran's right knee condition. See Stefl; see also Sklar, supra. The physician provided a positive nexus opinion but did not indicate the scope of his review of the Veteran's medical records, including the Veteran's claims file, which did not indicate complaints and/or a diagnosis of a right knee condition until February 2011. The claims file revealed normal separation examinations and clinical evidence that the Veteran was diagnosed with degenerative joint disease, right knee, in March 2012. As such, the March 2012 VA medical opinion is not probative to the issue at hand; the nexus/relationship between the Veteran's right knee condition and his service. As demonstrated in this appeal, the mere fact of an in-service injury is not enough. Rather, there must be a chronic disability resulting from that injury. Any manifestation of right knee pain and/or injury in-service does not necessarily permit service connection of a right knee condition shown as a clear cut clinical entity at some later date. See 38 C.F.R. § 3.303(b). The April 2014 VA examiner found that there is insufficient probative evidence to link the Veteran's current right knee condition he contends he experienced in service and his active duty service. Accordingly, service connection is not warranted on a direct basis. The Board recognizes the Veteran's assertion that his right knee condition is related to service. The Veteran is considered competent to report the observable manifestations of his claimed disability. In this regard, while the Veteran can competently report the onset and continuity of right knee pain and instability, an actual diagnosis of arthritis requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes, and can have many causes. In any event, to the extent the Veteran may be competent to opine as to medical etiology, the Board finds that the Veteran's lay assertions in the present case are outweighed by the medical evidence of record including the December 2013 examination report and April 2014 addendum opinion. The VA examiner has the training, knowledge, and expertise on which he relied to form his opinion, and he provided a persuasive rationale for his clinical assessment. Lastly, the Board considers the Veteran's assertion that he experienced right knee pain and instability since separation. However, clinical evidence of record indicated that the Veteran was diagnosed with degenerative joint disease, right knee, in March 2012. The clinical evidence indicates that the Veteran did not report symptoms of right knee pain until February 2011, 20 years after separation. In sum, the Veteran was not diagnosed with a right knee condition until more than 20 years after his separation from service. The evidence indicates that the Veteran's right knee condition did not manifest to a compensable degree within the one year presumptive period after separation from service. Therefore, the Board finds that the evidence of record preponderates against a finding of service connection for residuals of a right knee injury on a presumptive basis. Thus, after reviewing the evidence of record the Board finds there is no causal connection between the Veteran's current right knee condition and his service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for residuals of a right knee injury. The claim is therefore denied. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert. ORDER Entitlement to service connection for residuals of a right knee injury is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appealed issue of entitlement to an increased rating for chronic low back strain in excess of 20 percent prior to October 1, 2014 and in excess of 10 percent from October 1, 2014. The Veteran contends that he is entitled to a higher rating for his service-connected chronic low back strain. In December 2013, the Veteran was afforded a VA back (thoracolumbar spine) examination. The Veteran was diagnosed with lumbosacral strain. The Veteran reported flare-ups with pain at 5/10 as the baseline and pain at 10/10 with aggravation. Aggravating factors included weather changes, lifting, bending, and twisting. Range of motion testing revealed flexion to 90 degrees with painful motion at 80 degrees, extension to 30 degrees, right/left lateral flexion to 30 degrees and right/left lateral rotation to 30 degrees. The Veteran had functional loss due to painful movement and tenderness to palpation over his left lower back. There was no objective evidence of muscle spasm or guarding that resulted in abnormal gait or spinal contour. The Veteran did not use an assistive device for walking. The Veteran reported mild, intermittent radicular pain in the bilateral lower extremities. Reflex, sensory, and muscle strength testing were normal. There was no evidence of muscle atrophy or ankylosis. The Board finds the December 2013 VA examination incomplete. The United States Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the record evidence indicates that the December 2013 VA examination report does not include active and passive ROM findings. It also does not specify whether ROM was tested in weight-bearing or nonweight-bearing. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. As such, the Board finds that a remand is required with regard to the Veteran's appealed increased rating claim for chronic low back strain. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the level of impairment due to his service-connected chronic low back strain. 2. Readjudicate. The Veteram 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). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs