Citation Nr: 21016072 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-63 960 DATE: March 19, 2021 ORDER Service connection for a left knee strain with scar is granted. REMANDED Entitlement to service connection for dizziness is remanded. FINDING OF FACT A left knee strain with scar disability with scar had onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee strain with scar have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1962 to June 1965 during the Vietnam Era, and at peacetime. The Veteran testified at a hearing held in April 2019 before the undersigned Veterans Law Judge. The issues were remanded for development in November 2019 and October 2020 Board decisions. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As the Veteran has been diagnosed with a left knee strain disability, the Board has granted the claim of entitlement for a left knee strain with scar for service connection as indicated on the title page. Service Connection The Veteran asserts that service connection is warranted for a left leg disability, which has been recurrent since service, and that has been diagnosed as left knee strain. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1114; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 evidence favorable to the claimant. Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee strain with scar. The Board finds that service connection for a left knee strain with scar is warranted. The Veteran reported experiencing left knee strain during the appeal period. See April 2019 Board Hearing Transcript. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose pain in his left knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. Additionally, a December 2019 VA examination of the knee also diagnosed left knee strain. Therefore, the Board determines that the first element of service connection is satisfied. The Veteran’s service treatment records contain notation that the Veteran has a scar on his right lower leg. See June 1965 Separation Examination. The Veteran explains that the notation referenced the right leg in error, and that it was in fact his left knee that was injured while on active duty. Specifically, the Veteran explains that the scar serves as evidence that he was injured during his tour as a recruit instructor after falling on steps and hitting his knee on a “door water seal” after being pushed during a fire drill exercise. See January 2013 Statement; see also April 2019 Board Hearing Transcript. The Veteran competently and credibly reports that his left knee pain began during active duty service following this injury and has been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); see also April 2019 Board Hearing Transcript. The Board notes the January 2021 VA medical opinion that denied a nexus between the Veteran’s left knee pain and service. The VA examiner remarked that the Veteran’s separation examination was silent for knee pain, indicating that his knee injury during service was likely knee strain that had resolved by separation. The examiner noted that the Veteran’s treatment records have not shown complaint for knee pain for about 40 years post separation and opined that it was less likely than not that his current knee strain is related to the reported injury. The Board notes, however, that the VA examiner’s opinion lacked sufficient rationale in that while it documented inservice injury, it did not address the Veteran’s lay testimony that he had continual left pain since service. See January 2013 Statement; see also April 2019 Board Hearing Transcript. Additionally, H.G., the Veteran’s father-in-law submitted a statement explaining that he has known the Veteran since 1967 and that the Veteran has always had a slight limp. See November 2020 Statement. H.G. confirmed that the Veteran told him that his limp was due to injury that occurred during active duty service. Id. The Veteran presented sworn testimony that he has experienced left knee pain that has caused functional limitation continuously since he left active duty service. See April 2019 Board Hearing Transcript. The Veteran is competent to give reports of left knee pain with continued symptoms since service and the Board finds his account credible. Here, because the competent and credible evidence shows that the onset of the Veteran’s left knee with scar disability was in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500. REASONS FOR REMAND 2. Entitlement to service connection for dizziness is remanded. The Veteran seeks service connection for dizziness that he states was incurred due to medication taken during active duty service. Secondarily, the Veteran seek service connection for dizziness that was aggravated due to medication taken during active duty service. The Veteran was afforded VA examinations regarding his claimed dizziness in June 2013 and December 2019; however, the examiners did not address the Veteran’s statements that his dizziness began during and was caused by medication taken while in service. Further, the December 2019 examiner described a lack of history of dizziness as a reason that no diagnosis has not been given for the Veteran’s claimed condition. The Veteran’s VA treatment records show a history of complaints of dizziness, however. See eg. January 2015 and October 2016 VA Treatment Records. The claim was remanded in October 2020 for further development. The Veteran was afforded a VA examination in January 2021. The examiner noted the Veteran’s reports of dizziness secondary to mediation he took for weight loss during active duty but stated that there is no evidence that medications that results in dizziness cause chronic vertigo/dizziness once the medication has been stopped. The examiner provided no rationale to support the opinion that chronic or permanent vertigo/dizziness cannot occur once medication has been stopped. The examiner also noted that the Veteran’s post separation file was silent for dizziness for 40 years after he was discharged from the hospital. The Board notes that the reference to discharge from a “hospital” was likely a typographical error, and that the examiner intended to write the word “service”. Nevertheless, the Board finds the opinion insufficient in that if fails to consider the Veteran’s testimony that his dizziness has continued since discharge from service. The Board notes that the Veteran’s service entry examination documents symptoms of dizziness. The Veteran has also testified that he experienced dizziness after taking prescribed Preludin, a drug that was prescribed for weight loss while he served on active duty. The Veteran submits that the medication, which has since been taken off market, caused permanent dizziness/vertigo which still he experiences today. A competent VA examination must be obtained to determine if the Veteran has a permanent condition with symptoms of dizziness that was incurred or aggravated while he served on active duty. The Veteran also submitted articles from the British Journal of Addiction to Alcohol & Other Drugs regarding the toxicity of Preduline. See November 2020 statement from Veteran. The Veteran also submitted a document highlighting the pharmacological roots of Preduline, highlighting that the product is for research use only, and not for human or veterinary use. Id. It is not clear whether the examiner reviewed the submissions, as he failed to discuss whether the articles support the Veteran’s claim of dizziness following his use of prescribed Preduline. Lastly, the examiner did not discuss the etiology of the Veteran’s dizziness, which has been well documented in his VA treatment records as well as lay statements. Unfortunately, this requires yet another remand to ensure a fully accurate and descriptive medical opinion is obtained on behalf of the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes on the VA a concomitant duty to ensure compliance with the terms of the remand. Id. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) if possible, by an otolaryngologist, to determine the nature and etiology of his any diagnosed vertigo/dizziness disability. The determination of whether an in-person examination should be left to the discretion of the examiner. The VA examiner must review all the evidence of record and provide a medical opinion as to whether it is at least as likely as not that the Veteran’s dizziness is related to or aggravated by service, to specifically include as due to medication he took while on active duty. The examiner must specifically address the Veteran’s lay statement regarding his symptoms of dizziness, as well as articles submitted to support his claim. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so, and note what, if any, additional evidence would permit such an opinion to be made. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.