Citation Nr: 1806911	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-15 081	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Service connection for a right knee disability.

2.  Service connection for bilateral carpal tunnel syndrome.

3.  Service connection for a right shoulder disability.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Brad Farrell, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from July 1974 to May 1978 and service with the Air National Guard from April 1981 to May 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated February 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In April 2014, the Veteran perfected a timely substantive appeal.

The Veteran requested a Board hearing, which was scheduled to be held in August 2016.  However, in July 2016 the Veteran submitted a letter to the RO, withdrawing her request for a hearing.  Therefore, the request is deemed withdrawn and the Board may proceed with adjudication.  38 C.F.R. § 20.704(e) (2017).

The issues of service connection for bilateral carpal tunnel syndrome and a right shoulder disability are addressed in the REMAND section of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran is currently diagnosed with chondromalacia with degenerative joint disease of the right knee.

2.  With resolution of all reasonable doubt in her favor, the Veteran's current chondromalacia with degenerative joint disease of the right knee is etiologically related to service.





CONCLUSION OF LAW

The criteria to establish service connection for a right knee disability are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Procedural Duties

In this decision, the Board grants service connection for a right knee disability, which represents a full grant of the benefits sought on appeal for this particular claim; therefore, there are no further duties under the Veterans Claims Assistance Act of 2000 to notify or assist in substantiating the claim for VA benefits, and no further duties to explain how VA complied with those duties.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).

Service Connection - Applicable Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Osteoarthritis is a form of arthritis and qualifies as a "chronic disease" under 38 C.F.R. § 3.309(a).  See Dorland's Illustrated Medical Dictionary 1344 (32d ed. 2012) (degenerative joint disease, "osteoarthritis," and "degenerative arthritis" are interchangeable terms).  "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of opposing joint surfaces with consequent distortion of joint position usually without bony stiffening."  Webster's Medical Desk Dictionary 501 (1986).  See Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential decision citing medical authority to show that degenerative joint disease is a form of arthritis); Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection).  As such, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 apply to the claim for service connection for the Veteran's right knee disability.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For a chronic disease such as osteoarthritis, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at "any" later date, however remote, are shown, unless clearly attributable to intercurrent causes.

While a veteran is competent to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he or she is not, as a lay person, competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Moreover, joint disease is not the type of disability that is readily amenable to lay diagnosis, as the evidence shows that testing (e.g., x-rays), physical examination, and other specific findings are needed to properly assess and diagnose such disorders.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert, 21 Vet. App. at 462.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Analysis

The Board finds that competent medical evidence establishes that the Veteran has a current, chronic disability of the right knee.  VA treatment records include a notation of November 2011 x-ray results showing "minimal osteoarthritis," and an orthopedic consultation report dated March 2013 that includes a diagnosis of "osteoarthritis bilateral knees."  An undated letter signed by VA orthopedic physician-assistant M.M. (associated with the Veteran's claims file on November 30, 2015) notes a diagnosis of progressive bilateral knee osteoarthritis.

The Veteran asserts that her current right knee disability had its onset during service while "working on aircraft while in a kneeling position" and that the "repetitive working position caused and inflicted" daily pain, stiffness, loss of flexibility and arthritis.  See June 2012 Statement in Support of Claim.

The onset of the Veteran's chronic right knee disability during service is established by competent evidence of record.  The Veteran's DD Form 214 reflects that her military occupational specialty (MOS) was aircraft mechanic.  The Veteran's service treatment records (STRs) reflect that she complained of right knee pain in April 1976, with the doctor diagnosing knee strain.  Her private physician continued a diagnosis of degenerative bilateral knee chondromalacia.  See Letter dated December 18, 1995 from physician J.E.  Dr. J.E. indicated that while the Veteran's knee symptoms tended to wax and wane over the years, excelling kneeling and squatting tends to make it worse.  Dr. J.E. further stated that the Veteran's chondromalacia would probably not subside completely but may improve.  However, Dr. J.E. also indicated that further degenerative will occur with the passage of time.  A medical examination report dated January 1996 in which the Veteran noted having knee problems that rendered her unable to bend or kneel, and the examiner noted under the summary of defects "chondromalacia of both knees."  In a January 1996 Medical Board Examination report, the Air Surgeon noted "Chondromalacia of both knees ... unlikely to improve significantly over time."  By March 1996, a Medical Board had determined that the Veteran was medically disqualified for service on the basis of chondromalacia of both knees.  As noted above, recent VA treatment records demonstrate subsequent manifestations of the same chronic in-service disease.  Hence, the Board finds the aforementioned evidence competent and highly probative as to the Veteran's chronic and continuous symptoms of a right knee disability.

A December 2012 VA medical opinion offers a negative nexus opinion in regard to the Veteran's right knee disability.  The VA examiner acknowledged the April 1976 complaint of right knee pain, but concluded: "One in service incident fails to establish chronicity."  While the examiner correctly observed that the Veteran's March 1978 separation examination was negative for knee problems, the examiner failed to address the pre-separation diagnosis of degenerative chondromalacia of both knees, which is reflected in the Veteran's STRs.  The examiner also failed to acknowledge the Veteran's MOS of aircraft mechanic or discuss the Veteran's June 2012 contention that her right knee disability was caused by constant kneeling while maintaining aircraft during service.  Accordingly, the Board accords the December 2012 VA medical opinion little probative weight.

Further inquiry could be undertaken by obtaining an additional medical opinion.  However, competent medical evidence of record establishes that the Veteran was diagnosed in service with chronic bilateral chondromalacia with subsequent manifestations of the same disease with degenerative joint disease following the Veteran's separation from service.  There being no evidence of record of an intercurrent cause for the disease, and resolving reasonable doubt in the Veteran's favor, the Board finds that presumptive service connection for a right knee disability is warranted.

ORDER

Service connection for right knee chondromalacia with degenerative joint disease is granted.


REMAND

To date, the Veteran has not been afforded a VA examination in connection with her claims for bilateral carpal tunnel syndrome and a right shoulder disability.

VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested 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 veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i).  The third prong of McLendon, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83.

Here, as to evidence of current disability, VA treatment records reflect a December 2011 diagnosis of degenerative joint disease and rotator cuff tear of the Veteran's right shoulder, and surgical repair of the rotator cuff.  Subsequent VA treatment records reflect ongoing management of right shoulder pain.  Additionally, in April 2012, the Veteran was diagnosed with bilateral carpal tunnel syndrome, with subsequent problems of hand numbness and tingling.  Given the presence of the current right shoulder and bilateral carpal tunnel disabilities, the Veteran's lay statements regarding in-service repetitive hand motion and an in-service right shoulder injury while doing aircraft maintenance, see June 2012 Statement in Support of Claim, the Board finds that the Veteran should be afforded a VA examination to determine if the current disabilities originated during a period of active duty or are otherwise related to it.

Accordingly, the case is REMANDED for the following action:

1.  Obtain, with any necessary authorization, both the Veteran's VA and private treatment records pertinent to the right shoulder and bilateral carpal tunnel syndrome claims not already associated with the claims file, and associate the treatment records with the file.

2.  Then, schedule a VA examination by an examiner with appropriate expertise, specifically requesting a medical opinion as to the etiology of the Veteran's right shoulder disability, and bilateral carpal tunnel syndrome.  

The examiner should review the claims file, examine the Veteran, and issue a medical opinion that addresses the following questions:

(a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right shoulder disability is related to or had its onset during the Veteran's active duty service?

(b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral carpal tunnel syndrome is related to or had its onset during the Veteran's active duty service?

In providing the requested opinions, the examiner should consider the Veteran's competent lay claims that her disabilities are related to her MOS as an aircraft mechanic.

The opinions must include a complete rationale for all opinions expressed.

If the examiner concludes that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

3.  After undertaking any other appropriate development, readjudicate the issue of service connection for bilateral carpal tunnel syndrome and a right shoulder disability.  If the benefit sought is not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and afforded an 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).



______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs