Citation Nr: 0005153 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-08 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from November 1965 to September 1969. The veteran's service personnel records also reflect periods of active duty for training d from 1969 to 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1997 rating decision from the Department of Veterans Affairs (VA) Fort Harrison, Montana Medical and Regional Office Center (hereinafter, the "RO"), which denied entitlement to service connection for a left knee condition, a left hand injury, a shoulder condition, and plantar fasciitis. The RO granted entitlement to service connection for residuals of an appendectomy. In a February 1999 rating decision, the RO granted entitlement to service connection for residuals of an anterior dislocation of the left shoulder, residuals of a left-hand injury, and plantar fasciitis. The RO continued to deny entitlement to service connection for a left knee condition. In an April 1999 letter to the RO, the veteran stated that he was satisfied with the ratings awarded in the February 1999 rating decision, but continued to disagree with the denial of service connection for a left knee condition. Thus, the issues of service connection for residuals of an anterior dislocation of the left shoulder, residuals of a left hand injury, and plantar fasciitis are no longer before the Board for appellate consideration. FINDINGS OF FACT 1. A November 1965 report of medical history reflects a notation of a 1962 excision of the left medical meniscus without residual. 2. Private treatment records reflect the veteran underwent a lateral meniscectomy of the left knee in 1975. 3. Service medical records dated in 1993 and 1995 reflect a limited physical profile of the lower extremities. 4. In an April 1998 statement, a VA physician opined that the veteran's complaints were directly related to injuries sustained while in the employ of the government. 5. In a September 1998 statement, a VA anesthesiologist opined that the veteran's injuries were the direct result of his service. 6. An October 1998 VA examination revealed tenderness over the medial joint of the left knee and marked subpatellar crepitation on flexion and extension. CONCLUSION OF LAW The claim of entitlement to service connection for a left knee condition is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Relevant service medical records reflect that in a November 1965 report of medical history, a 1962 excision of the left medial meniscus without residuals was noted. Service medical records also reflect diagnoses of rule out traumatic arthritis and/or partial tear of left lateral meniscus in February 1967 and chondromalacia of the left patella with moderate pain on motion in April 1969. In a June 1969 report of medical history, a left trick knee was noted. Additional relevant service medical records reflect that the veteran's systems were clinically evaluated as normal in a February 1970 enlistment examination. In an April 1974 report of medical history, the veteran reported experiencing a trick or locked knee. It was noted that the veteran had undergone left knee surgery in 1961. A July 1979 report of medical history reflects a notation of left knee surgery in 1962 and in 1973. A report of medical history dated in February 1983 reflects a history of a trick knee, but no current problems. Upon physical examination dated in September 1984, the veteran's systems were clinically evaluated as normal and no defects were noted. A December 1988 physical examination report notes the left knee as stable with no fluid. A notation of minimal degenerative joint disease in the left knee was noted in a January 1992 report of medical history. A report of medical examination dated in January 1992 reflects all systems were clinically evaluated as normal and the veteran's physical profile was normal. The left knee joint was noted as stable in a March 1993 physical examination, but a limited physical profile as to the lower extremities was also noted. In August 1995, mild degenerative joint disease was noted in the left knee as well as -5 degrees full extension and -10 degrees flexion. A limited physical profile of the lower extremities was noted. Private treatment records dated in 1974 reflect that the veteran reported initially intermittent then constant pain precisely over the lateral joint line of the knee with occasional episodes of catching beginning several months earlier without known trauma but coincident with recently learning to parachute jump. Physical examination revealed full range of motion with only minimal tenderness over the lateral joint line. It was noted there was no effusion. It was noted the veteran did have an internal derangement, probably a lateral meniscus tear. Private treatment records dated in 1975 reflect that the veteran had continued symptoms in the lateral knee with aching, crepitus, and occasional swelling. It was noted that a lateral meniscectomy was indicated. A September 1975 discharge summary reflects that the veteran was admitted for a lateral meniscectomy of the left knee. A history of lateral pain, catching, instability, and unreliability, which persisted in spite of giving up parachuting and other aggravating activity, was noted. A radiology report of the left knee dated in October 1980 reflects a conclusion of degenerative arthritis and a possible loose body. A private medical statement dated in January 1985 reflects that the veteran had a diagnosis of post-traumatic arthritis of the left knee. The physician noted that the veteran remained virtually asymptomatic following his 1962 torn medial meniscus until a subsequent injury in 1975, which the veteran identified as an awkward parachute landing during training. An impression of post-traumatic arthritis of the left knee, status post meniscal injuries with separate medial and lateral open meniscectomies dated 1962 and 1975, with mild functional limitation was noted. It was also noted that x-rays dated in 1984 and 1985 showed mild progression of mild to moderate post-traumatic arthritis of the joint involving all three compartments. Private treatment records dated in 1987 reflect the veteran underwent arthroscopy trimming of the knee. A postoperative diagnosis of degenerative joint disease of the left knee was noted. A radiology report of the left knee dated in January 1987 reflects moderately advanced bony degenerative changes of the knee. A VA outpatient treatment record dated in April 1998 notes that the veteran's complaints of injury, particularly to the lateral meniscus of the left knee, were entirely plausible. The record further states that the lack of physical findings of deterioration or instability back in the 1960's was entirely plausible and that patients with meniscal injuries could have basically normal physical examinations. An impression of the need for joint replacement surgery on the left knee at some point in the future was also noted. The VA physician opined that the veteran's complaints were directly related to injuries sustained while in the employ of the Government. A September 1998 medical statement from a VA anesthesiologist reflects that the point of origin of the veteran's left knee pain is well defined to have occurred during his military service. It was noted that the veteran would eventually require total joint replacement of his left knee. The physician opined that the veteran's injuries were indeed a direct result of his service. In his October 1998 RO hearing, the veteran testified that he currently held the rank of Major in the National Guard. The veteran stated he was a urology and surgical orthopedic physician's assistant. (Transcript, page 2). The veteran testified that he reinjured his left knee while executing a parachute jump in 1974. The veteran stated that he was the medic on the Special Forces team and the only medical provider at that time. He stated there was no hospital available and no way to present himself to sick call. (Transcript, page 5). The veteran testified that he had no doubt that his lateral meniscectomy was caused by his military service. (Transcript, page 6). Upon VA examination dated in October 1998, physical examination of the left knee revealed tenderness over the medial joint and marked subpatellar crepitation on flexion and extension. Relevant diagnoses of status post medial and lateral meniscectomy of the left knee with reduced range of motion and with minimal residual ACL laxity, and chondromalacia of the left patella were noted. Analysis Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The term "active military, naval, or air service" includes active duty and any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a) (1999). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 1991). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § § 1110, 1153 (West 1991); 38 C.F.R. § § 3.303, 3.306 (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service-connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability; lay or medical evidence of incurrence or aggravation of a disease or injury in service; and competent medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). A claim based on chronicity may be well grounded if the chronic condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence sufficient to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Following a careful review of the evidence of record, the Board concludes that the veteran has presented a claim that is plausible. The medical evidence of record reflects that the veteran currently suffers from a left knee condition manifested by tenderness over the medial joint and marked subpatellar crepitation on flexion and extension. The evidence of record further reflects that the veteran underwent a lateral meniscectomy of the left knee in 1975, and that the veteran's physical profile of the lower extremities was limited in 1993 and 1995. Additionally, the veteran has submitted medical statements from two VA physicians relating his complaints to injuries sustained as a result of service. Thus, the Board concludes that the veteran has presented a claim that is arguably well grounded. ORDER The claim of entitlement to service connection for a left knee condition is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a left knee condition is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although the veteran has presented a plausible claim, the Board is of the opinion that additional development of the record is needed. The Board notes that the September 1998 VA statement is from an anesthesiologist and does not reflect whether the veteran's claims folder was reviewed. Additionally, the Board notes that although the veteran underwent a lateral meniscectomy of the left knee in 1975, he was not given a limited physical profile of the lower extremities until 1993. Thus, further development of the underlying medical issues is necessary to enable the Board to render a final decision. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request the names and addresses of all medical care providers administering treatment for his left knee condition since October 1998. After securing the necessary releases from the veteran, records of all such treatment should be obtained and associated with the claims folder. 2. The veteran should be afforded a VA specialist examination of his left knee. The claims folder and a copy of this remand must be made available to the examiner and reviewed prior to the examination. All indicated tests and studies should be completed and reviewed by the examiner. The examiner is requested to provide a diagnosis of any left knee disabilities noted on examination. Additionally, the examiner should state whether the veteran's left knee condition increased in disability during service. The examiner should also state whether such increase, if any, was due to the natural progress of the disease, or if it was the result of a reported 1974 parachute landing or any other incident of service. All findings and diagnoses should be reported in detail. 3. The RO should carefully review the examination report to ensure that it is in full compliance with this remand, including all of the requested findings and opinions. If not, the report should be returned to the examiner for corrective action. 4. After the requested development has been completed to the extent possible, the RO should again review the claim of entitlement to service connection for a left knee condition. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case with regard to the additional development and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals