Citation Nr: 1806007	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  11-15 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a right knee disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. D. Regan, Counsel


INTRODUCTION

The Veteran served on active duty in the Marine Corps from March 1954 to March 1957.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio, that denied service connection for a right knee disability (listed as status post a right total knee arthroplasty, claimed as a right knee condition).  

In April 2017, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge.  

In August 2017, the Board requested a Veterans Health Administration (VHA) opinion, and the VHA opinion was obtained in September 2017.  As the VHA opinion is fully favorable to the Veteran, it is not necessary to provide an opportunity for the Veteran and his representative to respond to the VHA opinion and the Board will decide the matter accordingly.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

A right knee disability, status post a right knee replacement, had its onset in service.  


CONCLUSION OF LAW

The criteria for service connection for a right knee disability, diagnosed as status post a right knee replacement, have been met.  38 U.S.C.A. §§ 1110, 1131 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 17.400 (2017).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  

In its June 2009 report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects", the National Academy of Sciences National Research Council provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants.  Fifteen disease conditions have been identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure.  See 38 U.S.C.A. § 1710 (e); 38 C.F.R. § 17.400 (2017).  Additionally, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune.  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The Veteran contends his right knee disability is related to service.  He reports that he was treated for right knee problems during his period of service, including while he was hospitalized for an appendectomy.  The Veteran also reports that he was found to have a leg length discrepancy during service.  He indicates that he did not have any right knee problems prior to service and that, after service, he self-medicated with alcohol for his right knee pain.  He also states that he never had polio, and that he did not have a right knee injury when he was fourteen years old.  The Veteran essentially contends that he was treated for right knee problems during service and that he has suffered from right knee problems since that time.  

The Veteran served on active duty in the Marine Corps from March 1954 to March 1957.  His service personnel records indicate that he served at Camp Lejeune, North Carolina, for at least thirty days.  The Veteran's service treatment records show that he was treated for right knee problems on numerous occasions.  

Post-service private and VA treatment records show that the Veteran received treatment for variously diagnosed right knee problems beginning in May 1999, including treatment for right knee pain, early varus gonarthrosis of the right knee, degenerative arthritis of the right knee, and degenerative joint disease of the right knee.  The Veteran also underwent multiple right knee surgeries, including right knee replacement surgeries.  

The Board determined that a VA medical opinion of record was insufficient to decide the Veteran's claim on the merits and in August 2017 sought an opinion from a VHA expert as to the etiology of the Veteran's claimed right knee disability.  The VHA opinion, obtained in September 2017, was provided by an expert in orthopedics.  

The VHA expert reported that the current diagnosis for the Veteran's right knee disability was the presence of a right artificial knee.  The VHA expert indicated that prior right knee diagnoses were a sprain of the anterior cruciate ligament; a sprain of the lateral collateral ligament; a sprain of the medial collateral ligament; and traumatic osteoarthritis.  The VHA expert opined that it was more likely than not that his need for a right knee replacement was caused by his in-service right knee conditions.  

The Board finds that the September 2017 opinion provided by the VHA expert is the most probative opinion of record.  The opinion provided by the VHA expert supports the Veteran's claim.  As such, service connection for right knee disability, diagnosed as status post a right knee replacement (right knee replacement, presence of an artificial right knee), is warranted.  As the Board has granted service connection for right knee disability, diagnosed as status post a right knee replacement, on a direct basis, it need not address any other theories of service connection.  


ORDER

Service connection for a right knee disability, diagnosed as status post a right knee replacement, is granted.  



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs