Citation Nr: 1806719 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 06-25 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to low back and left knee disabilities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1969 and from June 1970 to July 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge at his local RO (Travel Board hearing) in June 2009. A transcript of the hearing is of record. This case was previously before the Board in July 2010, October 2011, and August 2016. The case is now again before the Board for further appellate action. The Board notes there are several procedural matters to be addressed before turning to the merits of the Veteran's claim. First, there is a prior final rating decision of record from March 1989 pertaining to the claim of entitlement to service connection for a right knee disability. The Veteran was notified of the RO's decision in April 1989 and did not file a Notice of Disagreement. As such, the March 1989 decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Thereafter, he filed a petition to reopen this claim on August 14, 2002. The RO issued a rating decision continuing to deny his claim in February 2003, and the Veteran filed a Notice of Disagreement in April 2003. The RO subsequently did not to provide the Veteran with a Statement of the Case to which he could file a VA Form 9 to perfect his appeal to the Board. The Veteran filed another statement requesting service connection for his right knee disability on March 29, 2004, which the RO construed as a petition to reopen. However, as the Veteran was never afforded the opportunity to perfect his appeal stemming from the February 2003 rating decision, the Board finds that this matter has been pending since August 14, 2002. This determination as to the proper effective date is relevant as the Board is granting the Verena's claim below. Finally, as discussed above, this matter falls under the regulations governing new and material evidence claims due to the fact there was a prior final decision regarding the right knee disability. However, as the Board has not previously characterized the issue as such, and because the development conducted during the extensive appeals period meets the requirements to reopen a claim, no further discussion is warranted. 38 U.S.C.A. § 5108 38; C.F.R.§ 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2012). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the right knee disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection 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). The Veteran is seeking service connection for a right knee disability. Throughout the course of his appeal, he has asserted several theories of entitlement for establishing service connection. First, the Veteran stated at the beginning of his appeal that his knee began hurting during his military service and that he suffered from residuals of a right knee injury since. He has also alleged entitlement to service connection for the right knee as secondary to his service connected left knee and low back disabilities. As the Board finds there is sufficient evidence of record to grant this claim on a direct basis, consideration on a secondary basis is unnecessary. The Veteran's service treatment records show several complaints of right knee pain during his miliary service. Specifically, the Veteran reported knee pain during physical activity while stationed in Germany. However, there is no specific diagnosis of a right knee disability during his military service, or at separation in 1988. The Veteran has undergone numerous VA examinations in connection with his claim. During the applicable appellate period, he was scheduled for examinations in October 2004, April 2005, November 2010, August 2012, November 2016, and December 2016, in attempts to address the Veteran's various theories of entitlement. The several VA examiners all provided a diagnosis of osteoarthritis of the right knee and correctly noted that the Veteran's service treatment records included complaints of right knee pain. However, the October 2004 examiner determined it was less likely than not that the Veteran's right knee disability was due to his miliary service, but did not provide a rationale. The April 2005 VA examiner noted the Veteran's report of an in-service injury to the right knee but, when providing the nexus opinion, stated that the current right knee disability was not due to the Veteran's service due to the lack of symptoms and treatment noted between 1984 and 2004. The November 2016 VA examiner also determined the right knee disability was not due to the Veteran's military service because the Veteran stated that the pain began a few years after service. However, as noted above, the record indicates in-service complaints of right knee pain, and the Veteran submitted previous statements that he has suffered from pain since service. The November 2016 VA examiner did not address the Veteran's previous statements, but did note that the right knee disability was worse than the service connected left knee disability. As to the subsequent VA examinations, the primary focus of the provided opinions was whether the right knee disability is secondary to the left knee and low back disabilities, as also set forth by the Veteran. In support of his claim, the Veteran provided private treatment records pertaining to this claim. A June 2009 statement from the Veteran's private physician noted an in-service injury when the Veteran fell out of a truck, to which the left knee and low back disabilities are attributed. He also stated that the Veteran's right knee was symptomatically worse than the left, and that it all relates back to the initial injury. The Board notes the VA examiners failed to adequately consider and address the Veteran's competent reports of suffering from persistent and recurrent symptoms of pain in his right knee since, which was set forth early in the appellate period. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336. This deficiency renders the findings of the October 2004, April 2005, and November 2016 VA examiners incomplete, and the Board accords the opinions no probative value. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). As to the remaining examinations of record, since they primarily focused on whether the right knee disability is secondary to the service connected left knee and low back disabilities, further discussion of the adequacy these opinions is not warranted. The Board finds that the competent evidence of record confirms the he has experienced recurrent right knee pain since his separation from service, which was eventually diagnosed as osteoarthritis of the right knee. Further, he is competent to report the occurrence of pain in his knee since it is within the realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of his statements as the VA examiners all confirmed a diagnosis of arthritis of the knee. As such, the Board finds his lay testimony is both competent and credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Therefore, service connection for a right knee disability is warranted. ORDER Entitlement to service connection for a right knee disability is granted. REMAND Concerning the Veteran's claim of entitlement to a TDIU, in light of the Board's grant of the claim for service connection for a right knee disability, there is now an additional service-connected disability to be considered in determining whether he is unemployable on account of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19. The Board therefore is also remanding this claim for additional development. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). Accordingly, this remaining claim is REMANDED for the following actions: Following the promulgation of the grant for the right knee disability, the RO should readjudicate the remaining claim for a TDIU. If the claim of entitlement to a TDIU is not granted to the Veteran and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs