Citation Nr: 18152682 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 14-05 568 DATE: November 23, 2018 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lower back disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for squamous cell carcinoma located on the left side of the nose is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left knee disability due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 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 January 1965 to January 1968 and in the National Guard from June 1978 to December 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an March 2012 rating decision by the Little Rock Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was previously before the Board in November 2015, on which occasion a claim of entitlement to service connection for a left knee disability was reopened. The remaining claims were remanded. The Veteran presented testimony at a Board hearing in August 2014. A transcript of the hearing is associated with his claims folder. 1. Entitlement to service connection for a left knee disability The Veteran contends that osteoarthritis of the left knee is related to an in-service knee injury. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) the existence of 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. See 38 U.S.C. § 1110 (2012); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. The VA is required to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). When evaluating lay evidence, the Board must consider if the witness is competent to report the evidence. A lay person is competent to report information when they have knowledge of the facts or circumstances they are reporting. 38 C.F.R. § 3159(a)(2). While a lay person is not competent to report information that requires specialized education, training, or experience, 38 C.F.R. § 3159(a)(2), they are competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Should the Board determine that the lay evidence is competent, the Board must determine whether it is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). After the Board has made competence and credibility determinations, it must evaluate the evidence. See 38 U.S.C. § 7104(a). In doing so, the Board may favor one medical opinion over another. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis, and evidence shows that he injured his knee during service, the preponderance of the evidence weighs against finding that his diagnosis of osteoarthritis began during service or is otherwise related to his in-service knee injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records demonstrate the Veteran was diagnosed with left knee osteoarthritis in January 2010, 42 years after his separation from service. (02/22/2010, Medical Treatment Record – Government Facility, p. 3). Moreover, a December 2015 VA examiner opined that his left knee osteoarthritis is not at least as likely as not related to an in-service injury, event, or disease, including his in-service knee injury. The examiner noted that he injured his left knee in-service, but has a current diagnosis of bilateral degenerative arthritis. Given the bilateral nature of osteoarthritis, despite trauma occurring only to his left knee, the examiner concluded that osteoarthritis was “likely due to natural aging and not trauma.” (01/08/2016, C&P Exam, p.1). The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s VA medical records not only clearly indicate that he has bilateral osteoarthritis, but the records further indicate that osteoarthritis is worse in the right knee as opposed to the left knee, which sustained in-service trauma. In January 2010 he complained of bilateral knee pain, with his right knee being worse than the left. A subsequent radiologic study showed evidence of osteoarthritis, worse on the right than the left. (02/22/2010, Medical Treatment Record – Government Facility, p. 3). In October 2011 he complained of bilateral knee pain, with pain in the right knee worse than the left knee. (3/6/2012, CAPRI, p. 42). Radiological imagining conducted in October 2013 noted of the left knee, “[m]oderate narrowing of the medial compartment but not as severe as that seen on the right.” (1/11/2014, CAPRI, p. 94). The Board acknowledges that arthritis is among the 38 C.F.R. § 3.309(a) chronic diseases. However, the Board finds that the Veteran is not entitled to presumptive service connection as there was no finding of osteoarthritis until 2010, well after the one-year presumptive period. See C.F.R. § 3.307(a)(3). Moreover, the file otherwise lacks evidence of continuity of symptomatology since service, as will be addressed in more detail below. The Board notes the Veteran’s hearing testimony regarding post-service medical treatment for his knee injury after leaving the service in 1968. (11/04/2014, Hearing Transcript, p. 6). Specifically, he testified that he sought treatment for his left knee in in 1968 and 1977. (11/04/2014, Hearing Transcript, p. 6, 9). He is competent to report contemporaneous medical treatment. However, the Board finds that such statements are not credible, as he had previously indicated to VA medical providers in January 2010 that he sought treatment for his right knee in 1976, as opposed to the left knee for which he is currently seeking service connection. (2/22/2010, Medical Treatment Record – Government Facility, p. 3). Due to inconsistent lay evidence the weight of the record is against a finding of continuity of symptomatology. Furthermore, while the Veteran has provided lay evidence that he sought treatment for left knee pain after his discharge from active duty in 1968, there is no objective medical evidence or lay evidence, indicating that the treatment was for osteoarthritis. Indeed, he indicated that he sought treatment related to his in-service left knee injury, which the December 2015 examiner opined was a knee sprain, not for osteoarthritis. (01/08/2016, C&P Exam, p.1). As the earliest evidence of a diagnosis of osteoarthritis is from VA medical records dated in January 2010 and the record does not demonstrate continuity of symptomatology, the Board concludes that the chronic disease presumption under 38 C.F.R. § 3.307(a) is not applicable to his claim. In sum, as a VA examiner has opined that the Veteran’s current diagnosis of osteoarthritis is less likely than not related to an in-service left knee injury, and because osteoarthritis manifested more than a year after his discharge from active duty without evidence supporting continuity of symptomatology, the Board concludes that service connection of a left knee disability is not warranted. REASONS FOR REMAND 1. Whether new and material evidence exists to reopen a claim of service connection for a lower back disability is remanded. In November 2015 the Board considered the Veteran’s request to reopen a claim of service connection of a lower back disability. The Board remanded the claim, noting that “the determination as to whether these claims are new and material will depend on whether relevant, new service treatment records are received on remand.” The RO was directed to secure updated VA treatment records, associate all fee basis records with the file, and request his National Guard records, before adjudicating the claims. (11/02/2015, BVA Decision, p. 7). While the RO did comply with the Board’s directives to request and update the Veteran’s claim file, the RO failed to readjudicate the request to reopen a claim of service connection of a lower back disability. In failing to readjudicate the claim, the RO did not adequately comply with the November 2015 Board decision’s remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As a result, the claim is remanded to the RO for adjudication. 2. Whether new and material evidence exists to reopen a claim of service connection for squamous cell carcinoma located on the left side of the nose is remanded. As discussed previously, in November 2015 the Board considered the Veteran’s request to reopen a claim of service connection of squamous cell carcinoma. The Board remanded the claim, noting that “the determination as to whether these claims are new and material will depend on whether relevant, new service treatment records are received on remand.” The RO was directed to secure updated VA treatment records, associate all fee basis records with the file, and request his National Guard records, before adjudicating the claims. While the RO did comply with the Board’s directives to request and update the Veteran’s claim file, the RO failed to readjudicate the request to reopen a claim of service connection of squamous cell carcinoma. In failing to readjudicate the claim, the RO did not adequately comply with the November 2015 Board decision’s remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As a result, the claim is remanded to the RO for adjudication. (11/02/2015, BVA Decision, p. 7). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from July 2016 to the present. 2. Once new records have been associated with the claim file, the AOJ should readjudicate the claims. If the benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran 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). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk