Citation Nr: 1801885 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 05-25 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected lumbar spondylosis (hereinafter referred to as a "back disability"). 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a right foot/ankle disorder. 5. Entitlement to service connection for a left foot/ankle disorder. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to November 1980. This appeal is before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied service connection for an acquired psychiatric disorder (then described as "mental problems"), a bilateral foot disorder, and a bilateral knee disorder. All three issues were remanded by the Board in January 2008, and denied by the Board in December 2009. In November 2011, the United States Court of Appeals for Veterans Claims (Court), in pertinent part, vacated the December 2009 Board decision and remanded the claims for service connection for a bilateral foot disorder, bilateral knee disorder, and an acquired psychiatric disorder. In July 2012, the Board remanded these claims for additional development. In May 2013, the Board, in relevant part, denied the service connection claims for bilateral foot and knee disorders, and remanded the claim for an acquired psychiatric disorder. In a July 2014 Order, the Court endorsed a Joint Motion for Partial Remand (JMPR), and vacated the Board's May 2013 decision with respect to the bilateral foot and knee claims. The Court remanded the case for further action consistent with the terms of the JMPR. In December 2014, the Board remanded these claims for further development in accordance with the JMPR. Regarding the acquired psychiatric disorder claim, in a March 2014 decision, the Board, in relevant part, denied service connection. In a March 2015 Order, the Court endorsed a March 2015 JMPR and vacated the Board's March 2014 decision with respect to the denial of this claim. In August 2016, the Board remanded all three claims for further action consistent with the terms of the JMPRs. The Veteran testified before the undersigned Veterans Law Judge at an August 2017 videoconference hearing, and a transcript of this hearing is of record. The Veteran's attorney was not present, and the Veteran wished to proceed with the hearing without his attorney. In November 2017, he revoked the power of attorney that had appointed Christopher A. Porco as his attorney (this attorney did not represent the Veteran on the psychiatric claim). TheVeteran has not appointed another representative and is considered to be representing himself pro se. The Board notes that the Veteran has other claims on appeal, which are currently pending before the RO and not before the Board at this time. These claims will be addressed in a separate decision. The issue of entitlement to service connection for bilateral foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's acquired psychiatric disorder is etiologically related to his service-connected back disability. 2. The Veteran's right knee disorder did not manifest during service, did not manifest within one year from separation from service, and is not related to service. 3. The Veteran's left knee disorder did not manifest during service, did not manifest within one year from separation from service, and is not related to service. CONCLUSIONS OF LAW 1. The criteria to establish secondary service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2017). 3. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters In this case, neither the Veteran nor his prior attorney 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 a duty to assist argument). II. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, where a veteran served 90 days or more of active service, and a certain chronic disease, such as arthritis, becomes manifest to a degree of 10 percent or more within one year after 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 (2012); 38 C.F.R. §§ 3.307(a)(3), 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. Id. As the disorder at issue, arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Any increase in the severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disability, will be itself service-connected. 38 C.F.R. § 3.310(b). 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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder is related to physical attacks he experienced during service or, in the alternative, to his service-connected back disability. As an initial matter, the Board finds that the Veteran is service-connected for a back disability. Additionally, at his most recent VA examination in July 2017, the Veteran was diagnosed with persistent, severe somatic symptom disorder with predominant pain; persistent depressive disorder (dysthymia) with anxious distress; and cannabis use disorder. As such, whether the Veteran's acquired psychiatric disorder is caused by or aggravated by his back disability remains at issue under the secondary service connection theory. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 439. The July 2017 VA examiner noted the Veteran's use of cannabis as medication for pain but that it may be paradoxically affecting his sleep and mood, stated that the Veteran's back pain over time resulted in somatic symptom disorder (pain disorder), and discussed how his severely limited mobility due to back pain contributed to his depressive symptoms/dysthymia. As such, the VA examiner opined that the Veteran's acquired psychiatric disorder was at least as likely as not related to the Veteran's chronic back pain. The Board finds this opinion adequate to decide the claim, as well as probative. There is evidence against the claim. The Board notes that the August 2012 VA examiner in his May 2013 addendum opinion stated that it was less likely than not that the Veteran's acquired psychiatric disorder was aggravated by his service-connected low back disability. However, no rationale was provided. Additionally, the February 2017 VA examiner opined that it was less likely than not that any of the Veteran's current psychiatric diagnoses were aggravated by his service-connected back disability. However, she merely stated that there was a tenuous connection that the Veteran's service-connected back disability aggravated his depression beyond any medically established baseline. Absent any supporting rationale, the conclusory opinions are inadequate and not probative. Miller v. West, 11 Vet. App. 345, 348 (1998). Notably, there are no adequate, probative opinions that contradict the July 2017 VA examiner's positive opinion. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for an acquired psychiatric disorder, as secondary to the Veteran's service-connected back disability, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Bilateral Knee Disorder Service treatment records (STRs) include a January 1979 enlistment examination report reflecting a normal clinical evaluation of the lower extremities, and the Veteran's denial of swollen or painful joints and "trick" or locked knees. In July 1980, the Veteran reported pain in his knees, and was assessed with degenerative joint disease (DJD). In July 1980, the Veteran complained of knee pain, and was assessed with possible arthritis without instability or swelling. X-rays of the bilateral knees were within normal limits. His October 1980 separation examination report reflects a normal clinical evaluation of the lower extremities. In his June 2004 claims application, the Veteran reported that his bilateral knee problems began in July 1980. In March 2008, the Veteran stated that he had knee problems "all [his] life after service." VA treatment records include April 2008 x-rays that reveal no acute bony or soft tissue abnormalities bilaterally, and reflect May 2008 complaints of severe knee pain. In a January 2010 statement, the Veteran stated that his knees were very weak and gave out at least four times in the past 30 days. A May 2011 VA examination report reflects review of the Veteran's claims file. The Veteran reported that he experienced bilateral knee pain since 1979, but did not remember a specific injury. His knees occasionally swelled and "gave way." X-rays revealed no significant degenerative changes bilaterally. Magnetic resonance imaging (MRI) of the right knee revealed mild tricompartmental chondromalacia, and MRI of the left knee revealed mild tricompartmental chondromalacia and a tear of the posterior horn of the medial meniscus. The Veteran was found to have right knee mild osteoarthritis, and left knee mild osteoarthritis with medial meniscal tear. The VA examiner opined that the Veteran's current bilateral knee disability was not caused by military service or by his lumbar spondylosis. Rather, the determined that the Veteran's bilateral knee disability is more likely to be related to the normal aging process as the Veteran had age-appropriate degenerative changes in his knees, and did not have an in-service injury. In an April 2012 statement, the Veteran complained of bilateral knee pain from 1979 to 2012, and reported receiving injections in his knees every six months. He stated that he experienced painful walking on the right, that he could not put any weight on his right knee, that it felt like pins sticking in it, and that he had severe pain and weakness in his knees. A July 2012 VA examination report reflects diagnoses of bilateral patellofemoral syndrome. The Veteran complained of bilateral knee pain, and believed that he may have injured his knees during service although he could not remember the exact injury. The VA examiner opined that the Veteran's bilateral knee condition was less likely than not caused by or a result of service. Rather, the stated that bilateral patellofemoral syndrome was a very common condition found in the general population and determined that the Veteran's disability was likely related to normal wear and tear and not necessarily associated with military service. In January 2013, the Veteran stated that he injured his knees in service and that they continued to be weak and unstable. VA treatment records reflect a June 2014 impression of bilateral knee pain and chondromalacia; April 2016 x-rays of the right knee revealed no acute findings; and April 2016 x-rays of the left knee revealed normal mineralization and alignment, no acute fracture, maintained joint spaces, and no joint effusion. An August 2017 VA examination report reflects review of the Veteran's claims file and diagnoses of left knee meniscal tear, right knee anterior cruciate ligament (ACL) tear, and bilateral degenerative arthritis. It was noted that the Veteran's STRs included a joint complaint, but that x-rays were normal; and that the separation examination was normal with no complaints of knee problems. Knee x-rays revealed bilateral arthritis, a 2010 MRI revealed a meniscal tear of the left knee, and a 2008 MRI of the right knee revealed a partial tear of the ACL. The VA examiner opined that the Veteran's bilateral knee disorders were less likely than not related to his active duty service based on an isolated in-service event, normal testing during service, normal separation examination, silent post-service medical records for many years, and his post-service occupation of driving and operating heavy equipment. At the August 2017 videoconference hearing, the Veteran testified that he injured his right knee during service and that it never got well, that he had torn ligaments, and that they buckled. He contended that they were related to service because he had knee pain during service and when he left service, and had been receiving medical treatment since the 1990s when he started hurting "real bad." After review of all of the evidence of record, lay and medical, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral knee disorder. As an initial matter, the Board finds that the Veteran meets the first element of service connection, as he is diagnosed with osteoarthritis, patellofemoral syndrome, and chondromalacia in both knees. See 38 C.F.R. § 3.303(a). The Veteran's STRs also document complaints of knee pain and assessments of DJD and possible arthritis without instability or swelling. However, he had a normal clinical evaluation of the lower extremities at separation in October 1980. However, the Board finds that the weight of the lay and medical evidence is against a finding of a nexus between the current right and left knee disorders and service. The Veteran underwent a VA examination in August 2017; based on a review of the claims file, the VA examiner opined that it was less likely than not that the bilateral knee disorders were related to service. Specifically, the examiner found the in-service knee complaints to be isolated events, discussed the normal test results during service and at separation, noted that the Veteran's post-service treatment records were silent for many years, and referred to the Veteran's post-service occupation of driving and operating heavy equipment. The only evidence in support of the claims is the lay evidence of the Veteran. While the Veteran is competent to describe current observable knee symptoms or an in-service knee injuries or symptoms, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation of a complex medical condition such as bilateral knee disorders and their relationship to service, which requires specialized medical knowledge of the musculoskeletal system, which the Veteran is not shown to have. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing that ACL tear is a "medically complex" disorder that requires a medical opinion to diagnose and to relate to an in-service knee injury); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). As such, the Veteran's statements that his current bilateral knee diagnoses are related to his in-service knee complaints are beyond his expertise and thus are not probative. Thus, there is no other competent, probative evidence that contradicts the negative opinion of the August 2017 VA examiner. Additionally, to the extent that the Veteran asserts that he had chronic knee symptoms in service and since separation, his service separation findings contradict such lay evidence. Despite his complaints of knee pain and assessments of possible arthritis, in-service x-rays of the bilateral knees were normal, and the Veteran was found to have normal lower extremities at separation. Furthermore, April 2008 x-rays of the bilateral knees revealed no acute bony or soft tissue abnormalities. Accordingly, the Board finds that the weight of the evidence is against a finding of chronic symptoms of bilateral knee arthritis during service or within one year from separation. Thus, the preponderance of the evidence is against a finding of service connection for bilateral knee disorders. The claims must therefore be denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected back disability is granted. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The August 2016 Board remand instructed the AOJ to 1) complete the Board's December 2014 remand directives in regards to the service connection claims for bilateral foot and knee disorder, including obtaining supplemental opinions, and 2) readjudicate the claims. Specifically, in December 2014, the Board instructed the AOJ to return the claims file to the July 2012 VA examiner or another examiner for a supplemental opinion pursuant to the JMPR, which explained the deficiencies of the July 2012 opinion. The JMPR stated that it was unclear whether the July 2012 VA examiner considered the in-service injuries, diagnoses, treatments, and complaints involving the Veteran's feet and ankles in rendering his opinion. Even if he did, the rationale provided to support his opinion was inadequate to explain why the conditions and diagnoses specifically noted in service were not related to his currently diagnosed conditions. An August 2017 VA examination was provided in order to evaluate the Veteran's claimed bilateral foot disorder. However, the examiner again incorrectly noted that the Veteran's STRs were silent as to foot disorders. The Veteran's complaints of pain in the ankles with assessment of possible arthritis and twisted left ankle during service were not noted or discussed. As such, another remand is required in order for a VA opinion to be provided after review and full consideration of all of the evidence in the Veteran's claims file. Although the Board regrets this further delay, this additional development is necessary to ensure that the Veteran is afforded all due process under the law. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion from the August 2017 VA examiner, if available, to determine the nature and etiology of the Veteran's claimed bilateral foot disorder, to include bilateral metatarsalgia, right foot hallux valgus, and bilateral plantar fasciitis. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. A VA examination may be obtained if deemed necessary. Although a complete review of the record is imperative, attention is called to the following: *The January 1979 enlistment examination report reflecting normal clinical evaluation of the feet and the Veteran's denial of swollen or painful joints or foot trouble. *A March 1979 STR reflecting pain in the medial aspect of the left ankle after twisting it while running. *A July 1980 STR reflecting complaint of pain in the Veteran's ankles, assessment of possible arthritis, and x-rays of the ankles that were within normal limits. *The October 1980 separation examination report reflecting normal clinical evaluation of the feet. *The Veteran's June 2004 claims application, where he reported bilateral foot problems since November 1979. *The Veteran's July 2004 statement where the Veteran reported that his foot problems started after having to carry his backpack on his back, and that the bones in his feet hurt and were swollen. *A July 2012 VA examination report noting the Veteran's complaints of bilateral foot pain and belief that his feet were related to wear-and-tear during service; diagnoses of bilateral metatarsalgia and plantar fasciitis; and negative opinion. *The Veteran's November 2011 statement where he noted that he was an infantry foot soldier, and complained of pain, cramps, and numbness. *The Veteran's April 2012 statement where he complained of bilateral foot pain since 1979 and noted that he was provided special shoes and walker due to his severe pain and poor balance. *The Veteran's January 2013 statement where he complained of pain in his toes, feet, ankles, and heels, which began during service and continued post-service. *An August 2017 VA examination report reflecting diagnoses of bilateral metatarsalgia, right foot hallux valgus, and bilateral plantar fasciitis. *The Veteran's August 2017 videoconference hearing transcript, where he testified about bilateral ankle problems and in-service foot pain. After reviewing the claims file in its entirety, the examiner is asked to respond to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed bilateral foot/ankle disorder had its onset during service or is otherwise related to his active military service. **In doing so, address the Veteran's STRs reflecting both foot AND ANKLE complaints and treatment and his lay reports of having experienced foot/ankle pain during active service, as well as having experienced continuing symptoms since service. A complete rationale should be provided. 2. Readjudicate the Veteran's claims for service connection for bilateral foot/ankle disorders. If the benefit sought on appeal is not granted, the Veteran should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs