Citation Nr: 1801609 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-36 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right third finger disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from September 1977 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) from the August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran appeared at a March 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The issues of entitlement to an increased rating for a back disability and entitlement to service connection for a right third finger are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's current left knee disability is not related to his military service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). \ REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has participated in the Fully Developed Claim Program (FDC), which is designed to expedite the claims process, and thus received complete VCAA notice in conjunction with his 2012 application for benefits. See VA Form 21-526EZ; Veterans Benefits Administration (VBA) Fast Letter 12-25, The Fully Developed Claim Program, November 8, 2012. In an April 2012 written statement, he said that "1 have included -my complete civilian medical record and a copy of my military service treatment records. I have no additional evidence to submit in support of my claim, please decide my claim as soon as possible. The duty to notify was satisfied prior to the RO's initial decision by way of notification provided to the appellant with his Fully Developed Claim Form (VA 21-526EZ) that informed him of his duty and the VA's duty for obtaining evidence. The notice that accompanies the Fully Developed Claims form informed the appellant of what evidence is required to substantiate a claim for service connection and of the appellant's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. Thus, the notice that is part of the claim form submitted by the appellant satisfies the VCAA duty to notify. The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination has been secured in connection with the current claim satisfying VA's duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in March 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his back, left knee, and right third finger disability. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited representative from Missouri Veterans Commission No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). III. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). IV. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his current left knee disability is related to an in-service left knee injury. In September 2013, the Veteran underwent a VA examination. The examination report noted that the Veteran is currently diagnosed with derangement of the knee status-post arthroscopic repair of the ACL rupture and torn meniscus. The examiner opined that the Veteran's current left knee condition is less likely than not caused by or a result of the Veteran's intra-service events. The examiner referenced the Veteran's April 1993 service treatment record that noted knee pain with swelling and no injury or trauma. At that time the Veteran was diagnosed with bursitis and his examination was normal without any indication of ligament injury or deficiencies. The September 2013 examiner stated that there are no further service treatment records for the Veteran's left knee condition found to support a chronic condition. Furthermore, the Veteran's June 1994 separation examination did not note any knee condition or treatment. The VA examiner noted the Veteran's June 2003 post-service treatment note that indicated an evaluation of an injury to the Veteran's left knee that "felt like hyperextended" after a dirt bike riding accident which resulted in an ACL rupture and meniscus tear. At the time of this accident, the Veteran denied any prior injury. The examiner concluded that there is no objective evidence to show any correlation of intra-service left knee pain complaint diagnosed as bursitis with the Veteran's post-service knee injury diagnosed as an ACL rupture and meniscus tear. The only other evidence in the record concerning the etiology of the Veteran's left knee disability is statements from the Veteran. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). After reviewing the medical and lay evidence of record, the Board finds that service connection for a left knee disability is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Entitlement to service connection for a left knee disability 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 Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Back Disability The Veteran contends that his back disability warrants a rating in excess of 10 percent. However, the Veteran's most recent VA examination to evaluate his back disability was conducted in July 2012. Since then, a March 2017 hearing transcript indicates that the Veteran's back disability has worsened. Additionally, the most recent VA treatment records appear to be from September 2013. In light of the possibility that not all of the Veteran's treatment records are associated with the record as well as the fact that the Veteran's most recent back examination was over five years ago, the Board finds that a new VA examination is necessary to assess the severity of his back disability and a remand is thereby warranted. Right Third Finger The Veteran contends that his in-service injury involving his hand becoming trapped in the rungs of a ladder have caused his current right third finger and hand disability. In September 2013, the Veteran underwent a VA examination for his right third finger disability. The Veteran has stated multiple times throughout the record that he believed that this examination was abusive and inadequate. The examiner opined that the Veteran's claimed right third finger condition is less likely as not caused by or a result of the Veteran's service. The examiner referenced the Veteran's October 1978 service treatment record that noted treatment for a laceration of the right fourth finger as well as a dressing change of a laceration that states "middle finger." Additionally, the examiner noted that the Veteran's June 1994 separation examination did not mention any finger condition or treatments. The Board also notes a separate September 2013 VA opinion that states that the Veteran's bilateral carpal tunnel is not due to his in service fractures of his left wrist or lacerations to his right index or right middle fingers in service without clear evidence of a crush injury to the right hand. The examiner explained that the sensory nerves of all three right median innervated fingers are affected, not just the ones which had been lacerated. The examiner attributed the Veteran's post-service motorcycle accident and resulting vibrations and hypothyroidism, and not his military service, to be risk factors for carpal tunnel syndrome. However, the Board finds that a new examination is warranted as it appears that the September 2013 examiner did not take into account the Veteran's lay statements regarding his in-service injury of crushing his right fingers and hand. Additionally, the Veteran's service treatment records do indicate a laceration to the Veteran's middle finger, however, the examiner did not state whether this injury is related to his current right third finger disability. Thereby, on remand, the RO must schedule the Veteran for a VA examination to determine the etiology of any diagnosed right third finger and/or right hand disabilities. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. Once the above development has been completed, schedule the Veteran for a back VA examination to assess the severity of his service connected back disability. The examiner must review the electronic claims file to include this remand. All indicated tests should be performed, and all findings reported in detail. The examiner should also indicate the impairment that results from the Veteran's service connected back disability in terms of occupational functioning and daily activities. For purposes of these opinions, the examiner should assume the Veteran is a credible historian. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Next, schedule the Veteran for a VA examination to assess the etiology of the Veteran's right third finger and/or hand disability. The examiner must first identify all diagnosed right third finger and/or hand disabilities present during the period of the claim (from April 2012 to the present). After reviewing the record, and with consideration of the Veteran's statements, the examiner is asked to address the following with regard to each right third finger and/or hand disability diagnosed during the period of the claim: Is it at least as likely as not (a 50 percent probability or greater), that any diagnosed right third finger or right hand disability began in service, was caused by service, or is otherwise related to the Veteran's military service? For purposes of these opinions, the examiner should assume the Veteran is a credible historian. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 5. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 6. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. 7. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs