Citation Nr: 1806834 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-14 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right lower leg injury. 3. Entitlement to service connection for chest pain disability. 4. Entitlement to service connection for a rash on the face. 5. Entitlement to service connection for anxiety. REPRESENTATION Veteran represented by: Christopher L. Loiacono, Agent ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Los Angeles VA RO subsequently acquired jurisdiction. Consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran's service connection claim for anxiety has been broadly characterized on remand as one relating to an acquired psychiatric disability. A videoconference hearing of the Board was scheduled for February 22, 2017. By a filing of February 2017, the Veteran's representative informed the Board that the Veteran waived his right to a Board hearing. The Veteran's request for a hearing is considered withdrawn. In August 2013, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A request for a total disability based on individual unemployability (TDIU) is not always freestanding claim, but can be part of a claim for an increased rating claim for a disability or disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Currently the Veteran is not service-connected for any disability. Thus, the Board lacks jurisdiction over that issue. The issues of entitlement to service connection for chest pain disability, face rash, and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. Osteoarthritis of the left knee was not manifest during service or within one year of separation. Osteoarthritis of the left knee is not attributable to service. 2. Osteoarthritis of the right knee and right lower leg strain were not manifest in service and are not attributable to service. Arthritis of the right knee was not manifest in service or within the one-year presumptive period following service. CONCLUSIONS OF LAW 1. Osteoarthritis of the left knee was not incurred in or aggravated during service or within the one-year period following service, and it may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. Osteoarthritis of the right knee and right lower leg strain were not incurred in or aggravated during service, and arthritis of the right knee may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). A VA report of general information of May 2017 certifies that relevant medical records of the Veteran from a VA medical center for the period of January 1, 1986 to June 18, 1993 do not exist. The report notes that, while the Veteran identified his medical records as dating from January 1, 1986 to the present, he first registered with the relevant medical center in June 1993. Otherwise the Veteran has identified no outstanding evidence pertaining to his disabilities that could be obtained to substantiate the claim, and the Board is unaware of any such outstanding evidence. Neither the Veteran nor his representative has otherwise raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Left Knee Disability The Veteran seeks service connection for a left knee condition which he purports had its onset during service in January 1977. See Veteran's claim of January 2009. Left knee symptoms are noted in the Veteran's service treatment records. A record of January 1977 notes the Veteran's complaint of pain in the left knee for the past week. He reportedly had pain when walking up and down ladders after injuring the knee six months previously on a ship ladder. Following an examination including x-rays, the diagnosis was chondromalacia. Separation examinations conducted in November 1977 and December 1977 found the Veteran's lower extremities to be normal, and no left knee symptoms were reported. The assessment of a VA treatment record of August 2008 was "MVA [motor vehicle accident] yesterday with L sided muscle strain of shoulder and knee." X-rays of August 2008 showed normal knees without evidence of acute knee osseous injury or significant degenerative disease. A VA treatment record of January 2009 notes a history of knee pain, but the left or right knee was not specified. The Veteran underwent a VA examination in September 2012. Imaging yielded an impression of mild to moderate osteoarthritis of the left knee. The diagnosis was left knee osteoarthritis. The Veteran dated the symptoms from June 1976, when his left knee and right lower leg allegedly began to be hit by hatches and ladders and to bump against bombs. He reported that the condition had worsened. Upon examination, there was no limitation of flexion or extension of the left knee or right knee, including after repetitive use testing. Pain on movement was noted for both knees. The Veteran had pain on palpation of both knees. Muscle strength was normal. There was no instability. There were no meniscal conditions. Arthritis of the left knee was shown by x-ray evidence. The VA examiner offered a negative nexus opinion, finding that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that the single medical note of left knee pain in the service treatment records was not sufficient to demonstrate the severity or chronicity of a condition that could reasonably be thought to persist in a chronic manner from service to the present. There is no competent opinion of record linking the Veteran's osteoarthritis of the left knee to service. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2) (2017). This does not necessarily include opinions as to the cause of a current disability. The Veteran, as a layperson, is not competent to associate a disability such as arthritis with service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Furthermore, no Jandreau exception applies in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report his experienced symptoms during and following service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board does not find the Veteran to be credible, however, in his assertion of recurrent symptoms of the left knee from service to the present. The Veteran's contention is outweighed by the normal left knee examination conducted in both November 1977 and December 1977, and the lack of knee symptoms reported by the Veteran at that time. The Veteran did not have symptoms of arthritis of the left knee during service or within one year of service separation. Therefore an analysis based on presumed service connection for the chronic disease of arthritis does not apply. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Right Lower Leg Injury The Veteran seeks service connection for a lower leg injury that he dates to September 1977. See Veteran's claim of January 2009. A service treatment record of July 1976 notes the Veteran's report of experiencing right knee pain for the past day. Upon examination, the right knee joint was found to be stable with full range of motion and no tenderness. The McMurray test was negative. A service treatment record of September 1977 notes the Veteran's injury to the right lower leg after dropping a hatch cover on himself. The diagnosis was abrasion of the right lower leg and contusion with edema of the right lower leg. The recommended treatment was an ice compress and a bacitracin dressing. The following day, the Veteran was noted to be complaining of pain from the lower leg injury. An x-ray was taken, and no fracture was found. In reports of physical examination conducted for separation in both November 1977 and December 1977, the lower extremities were found to be normal upon examination. A March 2008 x-ray of the right knee yielded no evidence of fracture or dislocation. There was evidence of moderate osteoarthritis, and the Veteran's history of chronic knee pain was noted. See VA treatment record of January 2009. A VA treatment record of January 2009 notes the Veteran's report of right knee pain. The date of onset is not given. It is noted that the Veteran walked with a limp, but the cause of the limp is not indicated. The Veteran underwent a VA examination in September 2012. The Veteran reported that his right lower leg disability had its onset in June 1976 while at sea. He stated that his left knee and right lower leg were at that time hit by hatches and ladders and bumped against bombs. The condition had worsened, he stated. No arthritis of the right knee was shown by x-ray. Imaging of the right tibia and fibula showed no abnormality. The diagnosis was right lower leg strain. The VA examiner offered a negative nexus opinion, finding that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that the right knee injury noted in service was insufficient to demonstrate the severity or chronicity that could reasonably be thought to persist in a chronic manner to the day of the examination. The examiner stated that a diagnosis of "abrasion right lower leg" or "contusion right lower leg" rarely persists in a chronic manner for over 30 years. In the examiner's opinion, the absence of significant radiological findings during the examination over 30 years after the initial injury during service weakened the argument for an association between the Veteran's current disability and his service. There is no competent opinion of record linking the Veteran's osteoarthritis of the right knee and right lower leg strain to service. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2) (2017). This may include some matters such as describing symptoms, but does not necessarily include opinions on the cause of a current disability. The Veteran, as a layperson, is not competent to associate a disability such as arthritis or leg strain with service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Furthermore, no Jandreau exception applies in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report his experienced symptoms during and following service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board does not find the Veteran to be credible, however, in his assertion of recurrent symptoms of the right knee and right lower leg from service to the present. The Veteran's contention is outweighed by the normal right knee and right lower extremity in both November 1977 and December 1977, and the lack of such symptoms reported by the Veteran at that time. The Veteran did not have symptoms of arthritis of the right knee during service or within one year of service separation. Therefore an analysis based on presumed service connection for the chronic disease of arthritis does not apply. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for left knee disability is denied. Entitlement to service connection for right lower leg injury is denied. REMAND Chest Pain Disability The Veteran seeks service connection for chest pain that he maintains had its onset in March 1977 during service. See Veteran's claim of January 2009. Service treatment records of March 1977 and May 1977 note the Veteran's complaint of chest pains. In November 1977, the Veteran requested a confinement physical, and "heart [illegible] NAD" is noted in the service treatment record. The Veteran's separation examination report of December 1977 notes normal lungs, chest, and heart. A VA treatment record of May 2017 notes a history of atypical chest pain and lists atypical chest pain as an active problem. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant's service or with another service-connected disability, but (4) the competent medical evidence on file is not sufficient for VA to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The third factor has been held to have a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). No VA examination has been scheduled with respect to the Veteran's claimed chest pain disability. The Board will remand for a VA examination because the record indicates that current atypical chest pain may be associated with chest pain symptoms noted during service in 1977. Face Rash The Veteran seeks service connection for a face rash which he states had its onset in July 1977 during service. See Veteran's claim of January 2009. A service treatment record of July 1977 notes a rash on the right side of the Veteran's face. A service treatment record of December 1977 notes a rash on the face with no discharge or bleeding. The Veteran's separation examination report of December 1977 found the Veteran to be normal with respect to skin, head, face, neck, and scalp. "Normal" was also checked with respect to identifying body marks, scars, and tattoos, for which the examiner made notations of "none" and "M & S NCD." The Veteran underwent a VA examination in September 2012. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The Veteran was found to have xeroderma of the face and bilateral arms. The examiner offered a negative nexus opinion, finding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that, although a rash during service was documented, nothing in the current examination or post-service documentation suggests that the rash persisted in a chronic manner from service. The VA examination was "unremarkable" except for evidence of dry skin, which the examiner noted to be not the same as a rash. In the examiner's opinion, without evidence of an actual, current rash condition, it is not reasonable to objectively associate a reported current condition to the Veteran's service. Symptoms of a facial rash are noted in a VA treatment record subsequent to the September 2012 VA examination. Specifically, a record of November 2015 notes a darkly pigmented area to the right below the ear to the right side of the face. The Veteran has also been directed to apply a one-percent hydrocortisone cream for a rash, but the location(s) of the rash is not clear from the VA treatment records. See, e.g., VA treatment record of May 2017. In light of new VA treatment evidence relating to a possible current disability, the Board will remand for a new VA examination. A medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). Acquired Psychiatric Disability, to Include Anxiety The Veteran seeks service connection for anxiety. See Veteran's claim of January 2009. A service treatment record of July 1977 notes the Veteran's desire to leave the Navy and discontent with his duties. A service treatment record of August 1977 documents the Veteran's report of personal conflicts with fellow workers, his threatened violence, and his wish to talk to someone before getting into trouble. According to a service treatment record of October 1977, the Veteran reported having personal problems with crew members, losing concentration while working, and not being able to keep his mind on one thing for any period of time. He reported feeling anxious and not sleeping well. Upon evaluation, he was found to be "oriented well with clear [illegible] with no evidence of overt psychosis." The assessment was "situational anxiety [illegible]." The Veteran's separation examination report of December 1977 found him to be normal as to "psychiatric." The Veteran underwent a VA examination in September 2012. The Veteran did not indicate experiencing any current mental health issues. The symptoms of chronic sleep impairment, difficulty in adapting to stressful circumstances, and suicidal ideation were noted. He denied depression, anxiety, and related symptoms. The Veteran's symptoms of suicidal ideation were currently passive. In the VA examiner's opinion, the Veteran did not meet the criteria for any psychiatric disorder. It was noted that the Veteran had had significant interpersonal problems and difficulties adjusting to the demands of service. The examiner offered a negative nexus opinion, finding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no pathology upon which to diagnose a current disorder. A VA treatment record of April 2013 notes an assessment of depression/anxiety that is largely stable, but with occasional lowered mood and episodes of anxiety. A VA treatment record of September 2013 notes stable adjustment disorder/depression. A VA psychiatry progress note of September 2014 notes a diagnosis of adjustment disorder unspecified. The latter clinician noted that the Veteran had a history of adjustment disorder with depressed mood in 2012 that resolved, and that the Veteran now requested mental health treatment due to anger and anxiety regarding the psychosocial stressors of being laid off from work, recent discontinuance of unemployment compensation, a car breakdown, a VA claim not going through, fighting to get his 401K, and not being able to find a job. There is no indication by the Veteran or the clinicians of a relationship between current adjustment disorder/depression/anxiety and service. The VA examiner's negative nexus opinion was based on the lack of a current psychiatric disability. In light of new record evidence as to current disability, the Board will remand for a new VA examination. A medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to secure any outstanding treatment records relating to the remanded claims and associate them with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current chest pain disorder. The Veteran's virtual claims file must be made available for review by the examining doctor. All indicated tests should be conducted. Based on the examination results and a review of the record, the examiner should identify all chest pain disorders since the filing of the Veteran's claim in January 2009, even if now resolved. Then the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or better probability) that any chest pain disorder is etiologically related to the Veteran's active service. A rationale for all opinions must be provided. 3. Schedule the Veteran for an appropriate VA medical examination to determine the nature, extent, and etiology of all dermatological conditions since the filing of the Veteran's claim in January 2009, even if now resolved. The examination should be conducted during an exacerbation or active phase of the skin condition, if possible, in coordination with the Veteran. The Veteran's claims folder must be made available for review by the examining doctor. All indicated tests should be conducted. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has, or has had, a skin disorder at any time since the filing of his service connection claim in January 2009 that is etiologically related to the Veteran's active service. A rationale for all opinions must be provided. 4. Schedule the Veteran for an appropriate VA examination with a qualified examiner to determine the nature and etiology of any acquired psychiatric disorder(s) since the filing of the Veteran's claim in January 2009, even if now resolved. The Veteran's virtual claims folder must be made available for the doctor's review. All tests and studies deemed necessary by the examiner should be performed. The examiner must identify any acquired psychiatric disorder since January 2009 and provide for each disorder an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disability is related to the Veteran's active service. A rationale for all opinions must be provided. 5. After completion of the requested development and any further warranted development, readjudicate the remanded issues. If any benefit sought on appeal is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and the requisite opportunity to respond before the record is returned to the Board for further review. The appellant 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). 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs