Citation Nr: 18149417 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-22 664 DATE: November 9, 2018 ORDER Entitlement to service connection for right knee degenerative joint disease is granted. REMANDED Entitlement to service connection for residuals of a right distal tibia fracture is remanded. FINDING OF FACT The Veteran’s right knee degenerative joint disease is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee degenerative joint disease have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1955 to November 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active 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 the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for right knee degenerative joint disease is granted. The Veteran maintains that his current right knee degenerative joint disease is due to the in-service right leg crushing injury he sustained in August 1956 when his leg became caught between a buoy and a small boat. For the reasons below, the Board finds that the Veteran’s right knee degenerative joint disease is related to his active service. The Board concludes that the Veteran has a current diagnosis of right knee degenerative joint disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). Concerning the link between the Veteran’s current right knee degenerative joint disease and his active service, the Veteran underwent a VA examination in November 2013. The examiner determined that the Veteran’s right knee degenerative joint disease is not linked to his active service. In support, the medical opinion states that there is no evidence of right knee complaints during the Veteran’s active service. However, this means that the medical opinion’s rationale is improperly based, at least in part, upon an absence of documentation of in-service complaints and findings in the service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in-service medical records to provide a negative opinion). Further, the November 2013 medical opinion advises, without evidence, explanation, or citation to the Veteran’s medical history or his lay statements, that chronicity could not be established. The medical opinion also states that there is no medical literature that supports the proposition that a well-healed, non-displaced distal 1/3 tibia fracture in the remote past will cause ipsilateral knee conditions in the distant future. This statement does not actually point to any medical literature that supports the conclusion reached by the examiner or include evidence as to why there is no link between the Veteran’s right knee degenerative joint disease and his active service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). A November 2015 VA Orthopedic Surgery Consultation shows that the Veteran sustained a right knee and calf injury during active service and that he has developed chronic pain as a result. The consultation demonstrates that July 2015 imaging studies shows moderate to severe right knee osteoarthritis. The VA treatment record also shows that a physical examination was conducted. The VA physician concluded that the Veteran’s severe right knee degenerative joint disease is more likely than not related to the right knee injury he sustained during active service. The Veteran also underwent a VA examination in June 2016. The VA examiner concluded that the Veteran’s right knee degenerative is not linked to his active service. In support, the medical opinion provides that the medical literature does not provide any substantive evidence to suggest that a well aligned, asymptomatic healed distal tibial fracture, in the absence of any demonstrable deformity or gait alteration is causally related to remote development of degenerative arthritis in the ipsilateral knee. Again, this VA medical opinion does not cite to any specific medical literature to support this conclusion. See Nieves-Rodriguez, 22 Vet. App. at 304. The medical opinion also indicates that radiographic evidence shows that the Veteran’s right knee disability is suggestive of a chronic, inflammatory process, and given the absence of any abnormal findings in the distal tibia, are unlikely related to that remote fracture. Improperly relying on the lack of evidence in-service medical records, the medical opinion states that because the distal tibia fracture healed and the lack of in-service treatment and complaints concerning the right knee shows there was no substantial disability as a result. Nicholson, 451 F.3d at 1336-37; Cf. Dalton, 21 Vet. App. at 39-40. Lastly, the medical opinion maintains that the Veteran’s occupation as a truck driver after his active service shows there was no ongoing disability related to the in-service injury. This statement is not supported by references to medical literature, the Veteran’s lay statements, or his medical history. In weighing the probative value of the medical evidence, the Board finds that the November 2015 medical opinion at least counterbalances the November 2013 and June 2016 VA medical opinions. The VA physician that rendered the opinion in November 2015 obtained a detailed medical history from the Veteran, reviewed recent imaging studies, and conducted a physical examination. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians’ access to a Veteran’s medical records). Additionally, the November 2015 medical opinion was based on the VA physician’s familiarity with the treatment of the Veteran. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no “treating physician rule” requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but that it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran’s condition the clinician may be). As such, this positive nexus opinion carries significant probative weight in the Board’s determination. The Board finds the evidence concerning a link between the Veteran’s current right knee degenerative joint disease and his active service is in relative equipoise. Therefore, the Board resolves reasonable doubt in the Veteran’s favor to find that a nexus exists between his current right knee degenerative joint disease and his August 1956 in-service right leg injury. Accordingly, the evidence is at least in equipoise that the Veteran’s current right knee degenerative joint disease is linked to his active service. Thus, service connection for right knee degenerative joint disease is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a); Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a right distal tibia fracture is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During the August 2018 video-conference hearing, the Veteran reported that he recevied medical treatment at VA Medical Centers dating back to the 1980s. The Veteran’s claims folder contains VA treatment records dating back to April 1994. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue that remains on appeal. A remand is required to allow VA to obtain them. While the Veteran’s service treatment records have been obtained, a remand is required to allow VA to request the Veteran’s service treatment records from the U.S. Naval Hospital on the U.S.S. Haven. The Veteran’s claims folder demonstrates limited service treatment records from the Veteran’s time on the U.S.S. Haven. Thus, there are may be potentially relevant records not contained in the Veteran’s claims folder. The Veteran’s clinical records may have been filed separately and a remand is required to allow VA to obtain them. Should additional relevant VA treatment records or service treatment records from U.S. Naval Hospital on the U.S.S. Haven be obtained, the Veteran should be afforded a new VA examination and opinion that considers this additional information so that an informed decision can be made on this claim. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from 1980 to the present from all VA Medical Centers where the Veteran received medical treatment, including Oakland, California; the VA Northern California Health Care System (Sacramento, California); and in Austin, Dallas and Fort Worth, Texas. 2. Obtain the Veteran’s complete service treatment records, including from U.S. Naval Hospital on the U.S.S. Haven. A specific request for separately filed clinical records should be made. Document all requests for information as well as all responses in the claims folder. 3. After the above development is completed, and should relevant VA treatment records or service treatment records be obtained, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a right distal tibia fracture. (a.) The examiner must identify all current residuals of a right distal tibia fracture. (b.) The examiner must opine whether any current residuals of a right distal tibia fracture is/are at least as likely as not related to an in-service injury, event, or disease, including the August 1956 right leg injury he sustained during active service. (c.) The examiner must opine whether any residuals of a right distal tibia fracture is/are at least as likely as not: (i) proximately due to, or (ii) aggravated beyond its/their natural progression by his service-connected right knee degenerative joint disease, to include by any altered gait associated therewith. (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel