Citation Nr: 1805961 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-10 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for costochondritis, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of gall bladder removal, to include as due to exposure to environmental hazards in Southwest Asia. 3. Entitlement to service connection for a bilateral eye disability. 4. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to December 1993 with service in Southwest Asia from December 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and October 2014 and February 2015 rating decisions from the VA RO in St. Petersburg, Florida. The case is currently under the jurisdiction of the Columbia RO. In March 2016, the Veteran testified by video conference before a Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veterans Law Judge who conducted the March 2016 hearing is no longer employed at the Board. In a September 2017 letter, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101 (c) (2012), the Veteran was offered an opportunity to testify at a hearing before a Veterans Law Judge who could participate in making a final determination on her claim. The Veteran responded in September 2017 that she did not wish to appear at another hearing. Therefore, the Board finds that VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. The Board remanded these matters in September 2016 for additional development. During the course of the appeal, the RO, after additional development, granted service connection for headaches, in a June 2017 rating decision. Therefore, the Board finds that the full benefit sought on appeal was granted for this claim, and thus, the issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues of entitlement to service connection for gall bladder removal and a bilateral eye disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence of record shows that a relationship exists between the Veteran's diagnosed costochondritis and active service. 2. A right knee disability was not manifested in service, and the Veteran's right knee disability has not been shown to be the result of or aggravated by her service-connected right ankle disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, service connection for costochondritis is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection, to include on a secondary basis, for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in May 2013. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to her claims, and the examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the requirements of service connection as detailed above, regulations also provide that service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Service Connection- Costochondritis The Veteran contends that her costochondritis onset while she was on active duty. A review of the Veteran's service treatment records shows that in November 1989, she was treated for midsternal chest pain. A December 2008 private treatment record shows that the Veteran was diagnosed with costochondritis. A February 2017 VA examination report showed that the Veteran was diagnosed with costochondritis. After a physical examination and review of the Veteran's service treatment records, the VA examiner observed that she had tenderness to palpation on physical exam during service and it "certainly sounds like the exact same pain she is having now." The examiner thus concluded that the Veteran's costochondritis was at least as likely as not related to her time in the service, given that she had the same complaints while in the service. The Board finds that the February 2017 VA examination report of record is adequate to grant the Veteran's claim because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusion reached that her costochondritis was as likely as not related to the documented chest pain noted in the service treatment records. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that VA examiner's opinion to be competent, credible, persuasive, and probative as to grant the Veteran's claim. Accordingly, the Board finds that the evidence supports the claim and entitlement to service connection for costochondritis is granted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Service Connection- Right Knee Disability The Veteran asserts that her right knee disability is secondary to a service connected right ankle disability. While the Board notes that the Veteran does not specifically claim her right knee disability onset during service, a review regarding direct service connection will still be undertaken. Service treatment records show no reports or treatments for a right knee disability. A November 2003 VA treatment record shows that the Veteran reported right knee pain. X-rays conducted were negative for a right knee condition. A May 2010 private treatment report showed that the Veteran was diagnosed with a right knee medial meniscus tear. A June 2011 VA treatment letter shows that the Veteran reported right knee pain since 1991 while she was still on active duty. A February 2017 VA examination report showed that the Veteran was diagnosed with right knee arthritis status post knee replacement. The Veteran reported during examination that she first noticed knee pain around 2004. After a review of the Veteran's claims file and a physical examination, the examiner reported that the right knee condition was less likely than not caused by or aggravated by the service connected right ankle disability. The examiner noted that the knee and service connected ankle disorders were separate conditions. The examiner also noted that the Veteran did not report a knee condition in service or until many years after service; therefore, the condition was not related to service. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disability, to include as secondary to a service connected right ankle disability. Regarding service connection on a direct basis, the Board notes that the Veteran first reported right knee pain in 2003, which was many years after separation for service. Additionally, the Veteran's service treatment records show no treatment or reports for any right knee condition. There is no evidence of record to suggest that the Veteran's current right knee disability began in, or is otherwise etiologically linked to, her time in service. Therefore, service connection on a direct basis or as a chronic condition manifesting after separation from service is not warranted. Regarding whether the Veteran's right knee disability was caused or aggravated by service-connected right ankle disability, the Board also finds that a review of the record indicates that service connection on a secondary basis is not warranted. In so finding, the Board gives significant probative value to the February 2017 VA examination report and nexus opinion of record. Here, the VA examiner reviewed the Veteran's claims file, statements of symptomatology, and conducted physical examination of the Veteran. Based on this thorough examination, the examiner opined that it was less likely than not that the Veteran's current right knee disability was secondary to or aggravated by her service-connected right ankle disability. The Board notes, as discussed above, that this opinion is the only competent medical opinion of record to address the medical relationship, if any, between the Veteran's right knee disability and service, to include secondary to service connected disabilities. The medical opinion provides a thorough, clear rationale based on an accurate and thorough discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The basis for the negative opinions is consistent with the evidence of record. Neither the Veteran nor her representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for a right knee disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran's claim are her own lay statements. In those statements, the Veteran contends that her right knee disability was caused or aggravated by service connected right ankle disability or related to active service directly. However, the Board finds that the Veteran is a layperson, and there is no evidence of record to show that he has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of the medical condition she asserts warrants service connection. Diagnosing an orthopedic disability such as arthritis of the right knee and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's statements regarding diagnosis and etiology are not competent. Additionally the Veteran has provided conflicting statements regarding the onset of right knee pain. In 2003, 2010, and 2017, she reported that the right knee pain onset in 2004. In 2011, she reported experiencing right knee pain since service in 1991. The Board finds that the inconsistencies regarding the Veteran's reported onset of right knee pain reduces the credibility of her statements, because they are conflicting, and therefore the Board finds that they have little probative value. The Board finds that the competent and contemporaneous medical findings reported by the VA examiner outweigh the Veteran's statements regarding a right knee disability. The Board thus concludes that the preponderance of the evidence shows that the Veteran's right knee disability did not manifest during service, is not otherwise etiologically related to service, and was not caused or aggravated by service connected right ankle disability. Therefore, the preponderance of the evidence is against the claim for service connection for a right knee disability, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for costochondritis is granted. Entitlement to service connection for a right knee disability is denied. REMAND The Board regrets further delay in this case, but finds that a remand is required to satisfy VA's duty to assist regarding the Veteran's claims for service connection for a bilateral eye disability and residuals of gall bladder removal. The Veteran was provided a VA examination concerning her gall bladder disability in February 2017. The examiner reviewed the claims file and opined that since the Veteran did not list ongoing abdominal pain as a complaint during service and the gallbladder surgery happened 13 years after getting out of the service, her current gallbladder issue was less likely than not associated with her time in service. The Board finds that as this opinion was based solely on the lack of the Veteran reporting chronic abdominal pain either during or on separation from service, without any supporting medical principles or other rationale, it is thus inadequate. Additionally, the examiner did not comment on whether any of the Veteran's noted in-service reports of abdominal pain, or her reports of having experienced continuous symptoms of stomach aches since service, are related to her gallbladder disability. Therefore, another VA examination concerning the claimed gallbladder disability must be afforded to the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007). With regards to the Veteran's claim for entitlement to service connection for an eye disability, she was provide a VA examination in February 2017. The examiner opined that the Veteran did have early cataracts, pinguecula and dry eyes but after reviewing her file and conducting an optometric examination, the examiner stated, "I can not make an opinion without speculation as there is no reports of any injury or problems with the eyes noted in the service. The veteran's diagnosis could have very well been caused by natural aging processes." When a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382 (2010). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46 (2007). Here, the Board is unable to determine from the VA examiner's report why an opinion regarding whether the Veteran has a current eye disability that is related to active service could not be provided. Therefore, a another VA examination must be provided the Veteran in order to obtain an adequate etiological opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed gallbladder condition. The examiner must review the entire claims file and must note that review in the examination report. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should clearly set forth the rationale for all opinions expressed. The VA examiner should provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed gallbladder condition is directly related to active service, to include the in-service reports of abdominal pain and stomach aches since service. b) Whether it is at least likely as not that the Veteran's gallbladder condition is due to an undiagnosed illness and/or part of a medically unexplained chronic multi-symptom illness from exposure to environmental hazards in Southwest Asia. In providing this opinion, the examiner must address the issue of whether the evidence of record shows a continuity of a gallbladder condition since active duty service. The examiner must comment upon the Veteran's reports of symptomatology during active service and thereafter. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed eye disability. The examiner must review the entire claims file and must note that review in the examination report. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should clearly set forth the rationale for all opinions expressed. The VA examiner should provide an opinion as to the following: Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed eye disability is directly related to active service. 3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs