Citation Nr: 1805547 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-24 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right knee injury. 2. Entitlement to service connection for left knee disability. 3. Entitlement to a temporary total rating based on hospitalization in excess of 21 days and/or treatment requiring convalescence for a service-connected disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1993 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing of the Board held at the Waco VA RO in April 2017. A transcript of the hearing is of record. The issues of entitlement to service connection for left knee disability and entitlement to a temporary total rating 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 right knee joint osteoarthritis and recurrent subluxation of the right knee had their onset during service. CONCLUSION OF LAW Right knee joint osteoarthritis and recurrent subluxation of the right knee were incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, service connection requires: (1) a present disability; (2) an 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, the so-called nexus requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the chronic disease is shown as such during service or within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017). When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2017). Any increase in severity of a nonservice-connected disease or injury 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 disease, will be service-connected. See 38 C.F.R. § 3.310(b) (2017). The claimant bears the evidentiary burden of establishing all elements of a service connection claim, including the nexus requirement. See 38 U.S.C. § 5107(a) (2012); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C. § 1154(a) (2012). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right Knee Disability The Veteran has right knee joint osteoarthritis and recurrent subluxation of the right knee and has had right knee cartilage restoration surgery. See VA examination report of October 2015. The Veteran alleges that in-service injuries of September 1994 and December 1994 cause his current disability. Specifically, he maintains that his right knee was injured when he stepped in a hole and fell during field exercises in Texas in September 1994, and that he reinjured the knee in December 1994 during a rotation at the National Training Center in California. The Veteran alleges continual right knee symptoms from service to the present. See Veteran's claim of August 2011; Veteran's statement of October 2011; Veteran's statement of March 2012. According to the Veteran, he was taken to an Army medical center, x-rayed, and diagnosed with a dislocation of the right knee in September 1994. See VA disability benefits questionnaire of December 2012 (Dr. P.J.B); transcript of April 2017 Board hearing. The Veteran, as a layperson, is competent to report a contemporaneous medical diagnosis, and the Board finds the Veteran to be credible in his report of a diagnosed dislocation of the right knee during service in 1994. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the diagnosis is not documented in the Veteran's service treatment records, the records may be incomplete. Notably there are no reports of a service entrance examination in 1993 or a service separation examination in 1998. Where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. There is a positive nexus opinion of record. A VA treatment record of September 2014 contains a medical opinion that the Veteran's right knee condition of pain and ongoing symptoms is at least as likely as not related to his initial direct injury and treatment for the right knee patella dislocation that he sustained during service. The doctor summarized the history of the Veteran's in-service injury, post-service right knee diagnosis in 2011, and right knee surgery in 2012. Evidence that tends to weigh against the claim is the negative nexus opinions of the March 2012 and October 2015 VA examiners. The Board assigns less weight to these opinions, however, because the examiners' rationale for finding no relationship between current disability and service was that the Veteran's service treatment records do not document a right knee injury in 1994 or subsequent right-knee treatment during service. The Veteran is competent to report a contemporaneous diagnosis, and the VA examiners provided no medical basis for doubting the Veteran's report of in-service injury to the right knee and recurrent symptoms. The October 2015 VA examiner acknowledged that "there might be STRs missing." Furthermore, while the October 2015 examiner noted his review of the Veteran's claims folder, no mention was made in the report of the positive nexus opinion of September 2014 cited above. The probative value assigned to a medical opinion may be reduced when, as here, the clinician fails to acknowledge relevant information, particularly that which is contrary to the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board further notes that the September 2014 medical opinion was authored by an orthopedic surgeon, while the October 2015 VA examination was conducted by a physician assistant, and the credentials of the March 2012 VA examiner are unknown (identified only as "Chief, SEU)". The Board may appropriately favor the opinion of one competent medical authority over another. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion." See Nieves- Rodriguez, supra at 304. The Board may consider only independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this case, with current disability and in-service injury having been established, and the September 2014 positive nexus opinion representing the most probative evidence as to a nexus, service connection is warranted. ORDER Entitlement to service connection for right knee disability is granted. REMAND Left Knee Disability Remand is required for a new VA opinion as to the likelihood that the Veteran's his now service-connected right knee disability causes or aggravates his left knee disability. Nexus opinions as to the left knee provided by the VA examination reports of March 2012 and October 2015 are already of record, but those negative opinions were based primarily on the fact that the Veteran's right knee disability was not related to service. Because the Veteran, by today's order, is service-connected for a right knee disability, an addendum opinion is warranted. Furthermore, the VA examination reports were inadequate in that they did not address the Veteran's report of having to compensate for his right knee by his left knee. The Veteran has stated, "In 2008, I started having problems with my left knee due to it working twice as much to make up for my right knee." See Veteran's statement of October 2011. The Board will remand for an addendum opinion as to secondary service connection. Temporary Total Evaluation Under 38 C.F.R. § 4.29 (2017), a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. In November 2011, the Veteran filed a claim for "temporary 100% service connection for my right knee." The RO denied the claim. See notification letter of September 2012. In February 2013, the Veteran filed a notice of disagreement with respect to the denial of a 100 percent temporary evaluation, and no statement of the case (SOC) has been issued as to that issue. Where a notice of disagreement has been filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board will remand this issue. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case that addresses whether the Veteran is entitled to a temporary total rating based on hospitalization in excess of 21 days and/or treatment requiring convalescence for a service-connected disability. Inform the Veteran as to how he can perfect an appeal as to the issue. 2. Refer the Veteran's virtual claims folder to a qualified doctor for an addendum opinion with respect to the Veteran's diagnosed left knee disability. An examination must be scheduled if deemed necessary by the doctor. The reviewer should provide an opinion whether it is at least as likely as not (50 percent or greater) that the Veteran's left knee disability is due to, caused by, or aggravated by service or a service-connected disability, to include his right knee disability. If aggravation (i.e., permanent worsening of the disability beyond its natural progression) is found, the reviewing doctor should address the following medical issues: (1) the baseline manifestations of the Veteran's left knee disability prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to service, a service-connected disability, or medication taken for a service-connected disability. If an opinion cannot be provided without further examination of the Veteran, an examination must be provided. The rationale for all opinions expressed must be provided. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s) 3. After completing the above development, readjudicate the left knee claim (and the temporary total rating claim if the appeal is perfected) in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran with a supplemental statement of the case and the requisite opportunity to respond before returning the case to the Board. 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). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs