Citation Nr: 1804141 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-42 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for left elbow disability. 2. Entitlement to service connection for right elbow disability. 3. Entitlement to service connection for macular degeneration of the left eye. 4. Entitlement to service connection for left knee disability. 5. Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2017, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for macular degeneration of the left eye is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether left elbow degenerative joint disease is related to active military service. 2. The evidence is at least evenly balanced as to whether right elbow degenerative joint disease is related to active military service. 3. The evidence is at least evenly balanced as to whether left knee degenerative joint disease is related to active military service. 4. The evidence is at least evenly balanced as to whether right knee degenerative joint disease is related to active military service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, left elbow degenerative joint disease was incurred in active military service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. With reasonable doubt resolved in favor of the Veteran, right elbow degenerative joint disease was incurred in active military service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. 3. With reasonable doubt resolved in favor of the Veteran, left knee degenerative joint disease was incurred in active military service. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.304(b), 3.307, 3.309. 4. With reasonable doubt resolved in favor of the Veteran, right knee degenerative joint disease was incurred in active military service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Since the dispositions below are fully favorable, further discussion of VCAA compliance is not needed at this time. II. Service connection Service connection will 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. § 1131; 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. The provisions of 38 C.F.R. § 3.303(b) apply only to the specific chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), which include degenerative joint disease as a form of arthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). As applicable, active service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). It includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. "Injury" is defined as harm resulting from some type of external trauma. VAOPGCPREC 4-2002. 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 claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Left and right elbow disabilities November 1961 service treatment records (STRs) showed that the Veteran complained about right elbow pain. He was treated with hot compresses and an ace bandage. June 1962 separation physical examination reflected that the upper extremities were clinically examined and deemed to be normal. The Veteran's DD 214 confirms that the Veteran served in an Infantry Command and had prior National Guard service. February 1976 service medical history and physical examination indicated that the Veteran's elbows were asymptomatic and normal. In April 1995, the Veteran underwent right elbow surgery with a private physician. The surgery removed loose bodies around the joint. In March 2002, the Veteran underwent a similar surgery for his left elbow. In March 2016, the Veteran was afforded a VA contract examination for his right elbow disability. The examiner diagnosed bilateral elbow lateral and medial epicondylitis and right elbow osteoarthritis. The Veteran reported having bilateral elbow pain in the 1950s when his elbows struck the ground during rifle exercises. He reported the pain persisted. The examiner noted that the initial treatment occurred in 1995 with arthroscopic surgery to remove loose bodies. His right elbow pain recently returned. Clinical findings were reported. The examiner expressed a negative medical opinion for the right elbow disability. He cited the time lapse between 1995 treatment and active service. In his April 2016 notice of disagreement, the Veteran reported that his bilateral elbow epicondylitis was related to his infantry military activities. He believed the medical evidence supported the claims. At the November 2017 Board hearing, the Veteran reported that he regularly struck his elbows on hard surfaces during rifle training exercises. November 2017 hearing transcript, p. 4. He had to quickly fall on his elbows to fire the weapon. He reported that the private surgeon performing the elbow surgery told him that the loose fragments in his elbows were caused by these military exercises. Id. Based upon the above, the Board finds that service connection is warranted for left and right elbow degenerative arthritis. The April 1995 and March 2002 private medical records are competent medical evidence to establish degenerative arthritis in each elbow, respectively. Briefly, the Board notes that arthritis is a chronic disease and the March 2002 medical evidence of left elbow arthritis is sufficient to show a current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.309(a). The issue in dispute is a nexus. The Board finds the Veteran's recollections of repetitive elbow trauma resulting in an in-service injury to be competent and credible, and consistent with the circumstances of his active and National Guard service. See 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.6(a), 3.303(a). Similarly, his report that the surgeon told him his elbow disorder, then assessed as arthritis, was related to military trauma is competent and credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the March 2016 VA medical opinion weighs against a nexus for the right elbow disability. The VA examiner's rationale that a time lapse since service would weigh against a nexus is plausible. However, as noted above, the Veteran has reported that the treating surgeon attributed the elbow disability to cumulative trauma in service. The Veteran is competent to report an etiology originating from a physician as medical evidence. Id. Joint trauma, including the cumulative impact of small repetitive injury, is commonly known to cause subsequent degenerative arthritis. https://www.uptodate.com/contents/risk -factors-for-and-possible-causes-of-osteoarthritis (last visited January 11, 2018). It is reasonable to infer in this particular case that this is the rationale for the private physician's opinion given to the Veteran based the above common medical knowledge. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the medical evidence regarding the right elbow is in a relative state of equipoise and the reasonable doubt created by this equipoise must be resolved in favor of the Veteran. For the foregoing reasons, the evidence is at least evenly balanced as to whether the current bilateral elbow degenerative joint disease is related to the reported military knee trauma. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left and right elbow degenerative joint disease is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Left and right knee disabilities STRs from November 1961 reflected that the Veteran complained about left knee pain. The clinician referred to an old injury acting as a "trick knee." He was treated with an ace wrap and the clinician referred the Veteran to a doctor to see if he could transfer companies. The June 1962 separation examination reflected that the Veteran's lower extremities were clinically evaluated and deemed to be normal. Briefly, regarding the above reference to preexisting injury, the October 1961 entrance examination did not identify a left knee disability and the Veteran is presumed sound at entrance. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). August 2008 VA treatment records reflected that the Veteran had a recent acute left knee injury that aggravated his preexisting degenerative joint disease. August 2014 VA treatment records showed that the Veteran had a bilateral knee pain for several years. He denied any specific injury, but reported a history for military overexertion. In a statement accompanying his July 2015 claim, the Veteran reported that transferring in and out of tanks and Armored Personnel Carriers (APC) caused stress on his knees. The Veteran was afforded an October 2015 VA examination in connection with the claims. The examiner listed a diagnosis of bilateral degenerative arthritis for both knees. She noted the history of military exertions placing stress on the knee joints. She conducted a full clinical evaluation. She expressed a negative medical opinion. She cited the absence of a knee condition from the 1962 physical examination and an absence of medical care to show that the degenerative changes in both knees were advanced beyond a normal progression by military service. In his June 2017 substantive appeal, the Veteran asserted that the VA examination did not adequately consider the impact or stress of his military duties. During the November 2017 hearing, the Veteran testified that he regularly struck his knees on hard surfaces during infantry training exercises. He was required to quickly fall on his knees to fire the weapon. He did not seek medical attention. However, he had intermittent bilateral knee pain ever since military service. Based upon the above, the Board finds that service connection is warranted for left and right knee degenerative joint disease. The issue in dispute is a nexus. The Board finds the Veteran's recollection of knee pain beginning in service to be competent and credible, and consistent with the circumstances of his active and National Guard service. See 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.6(a), 3.303(a), 3.303(b). His lay reports of in-service knee trauma and continuing pain are prima facie evidence for a nexus to the currently diagnosed degenerative joint disease affecting each knee. Jandreau, 492 F.3d at 1377 n.4 (Veteran competent to report observable injury and associated pain); Id. The evidence weighing against the claim is the October 2015 VA medical opinion. However, the rationale supporting this medical opinion is inadequate as the VA examiner impermissibly rejects a nexus on the basis of an absence of regular medical treatment. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). For these reasons, the Board does not find the October 2015 VA medical opinion adequate for adjudication purposes. Id. For the foregoing reasons, the evidence is at least evenly balanced as to whether the current bilateral knee degenerative joint disease is related to the reported military knee trauma. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left and right knee degenerative joint disease is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative joint disease of the left elbow is granted. Service connection for degenerative joint disease of the right elbow is granted. Service connection for degenerative joint disease of the left knee is granted. Service connection for degenerative joint disease of the right knee is granted. REMAND Regarding left eye macular degeneration, the cause of this disability is inherently a complex medical question. It involves an internal medical process that is distinguishable from the relatively simple issues discussed above concerning the history of joint injury and pain. Jandreau, 492 F.3d at 1376-77. Thus, pertinent medical records are needed to resolve this claim and they are not of record. During the November 2017 hearing, the Veteran testified that his primary treatment for left eye macular degeneration was through the VA Choice Program. November 2017 hearing transcript pp.14-15. Thus, the AOJ should attempt to obtain such records from the private medical providers furnishing care through the VA Choice program. Then, the March 2016 VA Disability Benefit Questionnaire (DBQ) medical opinion is inadequate. The examiner characterizes the diagnosis as an age related disorder and does not provide a medical opinion. An addendum medical opinion is needed for the claim to fulfill VA's duty to assist in providing a responsive medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the claim remaining on appeal is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for left eye macular degeneration. A specific request should be made for treatment records from Drs. H. and L., and any other VA Choice Program provider furnishing left eye care (See June 2016 VA treatment records). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records dated from June 2016 to the present. 2. After obtaining and associating any pertinent ophthalmology records, contact an appropriately qualified clinician for a medical opinion. The entire electronic claims folder must be available and reviewed by the clinician. Based upon a complete review of the record, is it at least as likely as not (50 percent probability or greater) that left eye macular degeneration is related to active service? The clinician is directed to consider December 1961 optometry records noting reported blurry vision with fatigue. The clinician must provide a detailed rationale for all opinions with specific consideration to the December 1961 reports and clinical citations, as appropriate. The Veteran's recollections of observable symptoms must be considered. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. 3. Then, readjudicate the remaining claim on appeal based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs