Citation Nr: 21024797 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-31 346 DATE: April 26, 2021 ORDER Entitlement to service connection for left knee patellofemoral pain syndrome is granted. REMANDED Entitlement to service connection for back disability, to include cervical spine disability, is remanded. Entitlement to an initial disability rating for major depressive disorder in excess of 70 percent is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current left knee patellofemoral pain syndrome began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee patellofemoral pain syndrome are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2009 to August 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. The Veteran testified before a Decision Review Officer (DRO) at an October 2014 hearing and a transcript of the hearing is associated with his claims file. In June 2015, the agency of original jurisdiction (AOJ) assigned a 70 percent rating for major depressive disorder, from August 11, 2012. In October 2016, a DRO awarded a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from December 20, 2013 (the date that the Veteran’s gainful employment ended). In his August 2015 substantive appeal (VA Form 9), the Veteran indicated that he wanted to appear at a Board video-conference hearing. A hearing was scheduled for a date in January 2019 and the Veteran was notified of this scheduled hearing by way of a letter dated in December 2018. This letter was sent to his address of record and was not returned as undeliverable. He did not appear for the scheduled hearing. To the Board’s knowledge, he has not requested that the requested hearing be rescheduled. As such, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d). Service Connection Entitlement to service connection for left knee disability. The Veteran contends that he is entitled to service connection for left knee disability. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) 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). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement of current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim of service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has current left knee disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of left knee patellofemoral pain syndrome, and that the evidence is at least evenly balanced as to whether this disability began during active service. The report of a December 2012 VA knee examination reveals that the Veteran experiences left knee patellofemoral pain syndrome. Thus, current left knee disability has been demonstrated. Moreover, there is evidence of left knee symptoms in service and evidence of continuous knee symptoms in the years since service. In this regard, the Veteran has reported that he began to experience left knee pain in service in approximately 2010 and that ruck marching resulted in knee pain (see e.g., VA knee examination reports dated in December 2012 and May 2015). The Board acknowledges that the Veteran’s service treatment records contain multiple reports of treatment for right knee symptoms, but that there is no evidence of any specific treatment for the left knee during service. However, a service treatment record dated in April 2010 reflects that the Veteran reported pain in both legs, which was located below the knees in the anterior aspect of the legs. Moreover, the Veteran submitted his claim of service connection for left knee disability within months of his discharge from service in August 2012, and his post-service medical records and lay statements indicate that he has experienced continuous left knee symptoms in the years since service. The Veteran is competent to report continuous left knee symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, there is no evidence that explicitly contradicts the Veteran’s reports and his reports are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that his reports of continuous left knee symptoms in the years since service are credible. The Veteran was afforded a VA examination in May 2015 and was diagnosed with bilateral knee pains. The examiner opined that it was less likely as not that the Veteran’s left knee disability was caused by or related to active service. To support this conclusion the examiner noted as compared to the right knee with multiple notes confirming diagnosis and treatment, there was no mention at all of any left knee complaints, diagnosis or treatment during active service. The May 2015 opinion is of limited probative value because it is entirely based on the absence of clinical evidence of treatment for left knee problems during service, it does not acknowledge or comment on the potential significance of the Veteran’s treatment for left leg pain during service, and it does not take into account the Veteran’s competent and credible reports of continuous left knee symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced left knee symptoms in service and that there have been continuous knee symptoms in the years since service. He also experiences current left knee patellofemoral pain syndrome. There is no adequate medical opinion that is contrary to a conclusion that the current left knee disability had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee patellofemoral pain syndrome is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). REASONS FOR REMAND 1. Entitlement to service connection for back disability, also claimed as cervical spine disability, is remanded. The Veteran was afforded a VA examination in May 2015. The Veteran reported that neck pain started around 2011, during his service, with no history of trauma. He stated that he was not diagnosed with a neck condition during service or after service. He reported that since his separation from service, he has not been to any physician for a neck condition. On examination he had abnormal right and left lateral rotation. The examiner opined that the Veteran’s neck condition did not impact his ability to work. The examiner concluded that it was less likely as not that the Veteran’s current neck condition was caused by or related to active service. To support this conclusion, the examiner stated that the Veteran’s records did not show any documentation pertinent to a neck condition during service and the current neck examination showed almost normal range of motion without pain. The examiner noted that the Veteran stated he was not diagnosed with a neck condition during service, and has not been to any physician for a neck condition after release from service. In December 2012, the Veteran reported to a VA examiner that during ruck marching in 2010, he felt like he pulled or pinched something in the upper back. The Veteran’s service treatment records in March 2010 indicate that he reported upper back pain. The May 2015 examiner did not address the Veteran’s reports of back pain in 2010, and his service treatment records to support his claim. These records are not consistent with the examiner’s rationale that there was no pertinent documentation. As such a remand is necessary to afford the Veteran a new examination to determine the nature of any current cervical spine or back disability and to obtain a medical opinion as to whether any such disability is related to service. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Charleston Vista electronic records system and are dated to August 2018. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to an initial disability rating for major depressive disorder in excess of 70 percent is remanded. The evidence reflects that the Veteran’s service-connected psychiatric disability may have worsened since he was last examined by VA in March 2015. For instance, he did not report any panic attacks during the March 2015 examination, but his VA treatment records dated subsequent to the examination include reports of frequent panic attacks. In light of the evidence of potential worsening of the Veteran’s psychiatric disability, and as the issue of entitlement to a higher initial rating for major depressive disorder must otherwise be remanded for issuance of a supplemental statement of the case (SSOC), he should be afforded an appropriate examination upon remand to ascertain the current severity of his service-connected psychiatric disability. Also, all outstanding VA treatment records should be secured upon remand. Lastly, following a June 2015 statement of the case, additional evidence has been associated with the Veteran’s claims file by the AOJ that is relevant to the issue of entitlement to a higher initial rating for major depressive disorder. This evidence includes VA treatment records from the Charleston Vista electronic records system dated from March 2015 through August 2018. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the psychiatric issue for issuance of the necessary SSOC. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the Charleston Vista electronic records system for the period since August 2018; and all such relevant records from any other sufficiently identified VA facility, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature of any current back and cervical spine disability and to obtain a medical opinion as to whether any such disability is related to service. The clinician must provide an opinion as to whether any back and cervical spine disability experienced by the Veteran since approximately October 2012 at least as likely as not (i.e., a 50 percent or more probability) (1) began during active service; (2) manifested within one year after separation from active service (in the case of any currently diagnosed arthritis); or (3) is related to an injury or disease during service, including his reported upper back pain in service after a ruck march and his treatment for upper back pain in March 2010 which is documented in his service treatment records. In so doing, the clinician should discuss the medical significance, if any, of the fact that the Veteran reported upper back pain after a ruck march, and the service treatment records in March 2010 indicating upper back pain. A complete rationale for all opinions expressed must be provided. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected psychiatric disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The clinician must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the clinician should identify any symptoms and social and occupational impairment due to the Veteran’s psychiatric disability alone. A complete rationale for all opinions expressed must be provided. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a supplemental statement of the case that considers all additional relevant evidence received since the June 2015 statement of the case, and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel 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.