Citation Nr: 1820697 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 13-19 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a gastrointestinal disability, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. REPRESENTATION Veteran is represented by: Jodee R. Dietzenbach, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to January 1983, from September 1990 to May 1991, and from February 2000 to March 2000, including service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in November 2016, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in rating decisions dated November 2017 and December 2017, service connection was granted for a left knee disability and headaches. Therefore, those claims are no longer before the Board. The issue of entitlement to service connection for a gastrointestinal disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative evidence of record clearly and unmistakably shows that the Veteran's retropatellar pain syndrome preexisted his third period of active duty and was not aggravated by service; arthritis of the right knee was not shown in service or for many years thereafter, and the most probative evidence indicates that a current right knee disability is not related to any period of active duty. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Only such conditions as are recorded on a veteran's examination report are to be considered as "noted." 38 C.F.R. § 3.304(b). When a preexisting condition is not noted on a veteran's entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The Veteran asserts that a current right knee disability was caused by wear and tear and physical exertion during service, including jumping in and out of trucks and armored equipment. During the July 2016 Board hearing, the Veteran testified that he experienced progressively worsening knee pain during service. He further testified that he was discharged from his third period of active duty due to knee pain and experienced continued knee problems ever since. Service treatment records show that in May 1981, the Veteran reported knee pain while being treated for numbness in his right hand and foot at a hospital in Munchweiler, Germany. No diagnosis was rendered with respect to the knees. In August 1982, the Veteran reported knee pain for two days. A physical examination was normal, and the Veteran was advised to take Motrin. Another undated service treatment record shows treatment for a bruised knee. A March 2000 service treatment record shows that the Veteran reported gradual bilateral knee pain. He was prescribed braces, crutches, and rehabilitation exercises and placed on physical profile. A March 2000 report of an Entrance Physical Standings Board (EPSBD) indicates that that the Veteran's knees were asymptomatic on enlistment, but within the first two weeks of basic training, he reported knee pain to the point where he was unable to continue training and was diagnosed with retropatellar pain syndrome. The Veteran was discharged for failure to meet the medical requirements for enlistment. Upon review of the record, the Board finds that service connection for a right knee disability is not warranted. As an initial matter, to the extent that the Veteran claims to have experienced continued right knee pain since one of his first two periods of active duty, the Board finds that such assertions are not consistent with the evidence of record. A September 1985 Army Reserve report of medical examination indicates that the Veteran's lower extremities were normal, and he denied any swollen or painful joints; trick or locked knees; or bone, joint or other deformity on an accompanying report of medical history. Likewise, on a January 2000 report of medical history, the Veteran denied any swollen or painful joints; trick or locked knees; or bone, joint or other deformity. The Board finds the contemporaneous medical evidence to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). Moreover, during a February 2011 VA Persian Gulf War examination, the Veteran reported few problems with his knees prior to his third period of active duty. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board likewise finds that the Veteran's assertions of continued right knee pain ever since his discharge from his third period of active duty are not consistent with the evidence of record. See Caluza, 7 Vet. App. at 511. After the Veteran was discharged for failure to meet the medical requirements for enlistment, post-service treatment records show no treatment for right knee symptoms until approximately November 2010. VA treatment records show that the Veteran reported right knee pain and right kneecap popping, snapping, and slipping ever since he injured it on the job in July 2010 after falling 12 feet and landing on his right knee and shoulder. See Cartright, 2 Vet. App. 24, 25; see also Buchanan, 451 F.3d at 1337. With respect to the Veteran's diagnosis of retropatellar pain syndrome, the Board finds that it clearly and unmistakably preexisted the Veteran's third period of active duty and was not aggravated by service. See 38 C.F.R. § 3.304(b). Service treatment records show that although the Veteran's knees were asymptomatic at enlistment, he reported gradual bilateral knee pain within the first two weeks of basic training, and there was no evidence that he sustained any injuries to his knees during service. The EPSBD concluded that the Veteran's retropatellar pain syndrome existed prior to service and recommended discharge for failure to meet the medical requirements for enlistment. The Veteran signed the EPSBD report indicating that he was informed of the medical findings and that he concurred with them. Notably, the EPSBD report provided the Veteran with an opportunity to express his disagreement with the EPSBD's conclusions. Specifically, the report provided boxes to check if the Veteran believed that his condition did not exist prior to service or that his condition preexisted service, but was aggravated by service. However, he did not check either box and instead checked the box indicating that he agreed with the EPSBD's conclusions. The Board finds the Veteran's contemporaneous statements to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25. Furthermore, in May 2017, a VA examiner reviewed the evidence of record and opined that service treatment records demonstrated that the Veteran's retropatellar pain syndrome preexisted his third period of active duty and was not aggravated by service. In support of this, the examiner indicated that that there were no records of any right knee issues for years after service that would suggest that the Veteran's right knee was permanently worsened beyond its natural progression by service, and imaging studies of the right knee performed in 2010 were unremarkable. Moreover, as will be discussed below, the examiner did not link any currently diagnosed right knee disability to a period of active duty. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). Upon review of the record, the Board finds the probative evidence of record is against a finding that any currently diagnosed right knee disability is related to any of the Veteran's periods of service. During the May 2017 VA examination, the Veteran reported in-service treatment for knee pain in the 1980's, but stated that he did not recall receiving a particular diagnosis. He stated that during his third period of active duty, he experienced bilateral knee pain during his first two weeks of basic training, particularly in the left knee, and much less in the right knee. He stated that he was placed on physical profile and released from active duty. He reported continued problems with his knees ever since and noted current symptoms of achiness in his right knee at times. It was noted that the Veteran was diagnosed with right knee patellar malalignment during a February 2011 VA Gulf War examination and had arthritis of both knees. The examiner opined that a current right knee disability was less likely than not incurred in or caused by service. In support of this, the examiner indicated that that there were no records of treatment for any right knee issues for years after service. Furthermore, the examiner indicated that the Veteran engaged in civilian employment that could also contribute to his current knee conditions and noted that he sustained a work injury involving the right knee in 2010. Moreover, the examiner indicated that 2010 imaging studies of the right knee were unremarkable, and 2013 imaging studies showed only minimal degenerative changes, which are not an uncommon finding for someone the Veteran's age. Although the Veteran believes that a current right knee disability was caused or aggravated by service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of knee disabilities are matters not capable of lay observation and require medical expertise to determine. Moreover, whether symptoms the Veteran reportedly experienced in service or following service are in any way related to a subsequently diagnosed knee disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the opinion of the Veteran regarding the etiology of a current right knee disability is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a right knee disability is denied. ORDER Service connection for a right knee disability is denied. REMAND With respect to the service connection claim for a gastrointestinal disability, a March 2000 service treatment record shows that the Veteran reported intermittent mid-epigastric cramping, hematemesis, and nausea for three days. He was treated in the emergency room and diagnosed with nonsteroidal anti-inflammatory drug (NSAID)-induced gastritis. Post-service treatment records show that the Veteran reported symptoms of heartburn in November 2010. During a February 2011 VA Gulf War examination, he reported, among other things, a history of heartburn, indigestion, and regurgitation. Thereafter, a June 2016 VA treatment record shows that the Veteran reported epigastric pain, an acid feeling with nausea at times, and vomiting bile at times. The diagnosis was gastroesophageal reflux disease (GERD). The Veteran underwent a VA examination in May 2017, and the examiner opined that the Veteran's GERD was less likely than not incurred in or caused by service. In support of this, the examiner indicated that there were no treatment records or immediate post-service treatment records showing a diagnosis of GERD. However, service connection may be granted for a disability initially diagnosed after service when the evidence establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). As such, the Board finds that a remand is necessary in order to obtain a supplemental opinion that addresses the Veteran's in-service complaints of mid-epigastric cramping, hematemesis, and nausea and subsequent treatment records showing complaints of heartburn, indigestion, and regurgitation. Additionally, during the May 2017 VA examination, the Veteran reported receiving a diagnosis of irritable bowel syndrome (IBS) from a private treatment provider. On remand, the Veteran should be afforded the opportunity to submit or request that VA obtain such private treatment records. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for a gastrointestinal disability, to specifically include the treatment provider who diagnosed him with IBS. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above development has been completed to the extent possible, and relevant records are associated with the claims file, the AOJ should obtain another opinion with respect to the Veteran's service connection claim for a gastrointestinal disability. If another examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, the examiner should provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that any current gastrointestinal disability, including GERD, is a continuation of or otherwise related to the Veteran's in-service complaints of mid-epigastric cramping, hematemesis, and nausea in March 2000. A rationale for all opinions should be provided. The examiner's opinion should reflect consideration of post-service treatment records and a February 2011 VA examination report showing that the Veteran reported a history of heartburn, indigestion, and regurgitation. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claims should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs