Excerpt from decision below:
“While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant’s chest pains may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A)).”
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“Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (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; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran’s service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. §
5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, “taking into consideration all information and lay or medical evidence (including statements of the claimant).” 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a “low threshold,” McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3177
LOWELL D. JOHNSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Lowell Johnson, appeals through counsel a
May 19,
2009, Board of Veterans’ Appeals (Board) decision that denied his request
for entitlement to service
connection for a left knee disability and a right knee disability; a
compensable disability rating for
service-connected hypertension; and a disability rating in excess of 20%
for service-connected
peripheral neuropathy of the right lower extremity. This appeal is timely,
and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the following reasons, the Court will vacate the Board’s May 19, 2009,
decision and remand these
matters for further proceedings consistent with this opinion.
I. BACKGROUND
The appellant served on active dutyin the U.S. Army from July1967 until
March 1970, with
service in Vietnam. Record of Proceedings (R.) at 2373. His service
medical records (SMRs)
indicate that he twisted his knee in November 1967 and again the next
month. R. at 2451. Neither
entry indicates which knee the appellant injured. However, a radiographic
report from December
1967 states under the clinical history section: “Pain L[eft] knee since
November.” R. at 2450.
During his March 12, 1970, separation examination the appellant indicated
that he had a “trick” or
locked knee. R. at 2455. However, the results of the examination showed ”
normal” lower
extremities. R. at 2453.
A VA examination on August 4, 2003, reported a history of hypertension,
neuropathy, right
knee arthroscopic surgery in 1988, and “f[ractured] left patella.” R. at
2430. In September 2003,
the appellant was examined for left knee pain subsequent to a fall. R. at
2427-29. An x-rayrevealed
“[o]ld adductor magnus insertion avulsion, which is solid healed with
deformity. The knee joint is
otherwise normal.” R. at 2428. The same examination diagnosed well-
controlled hypertension. R.
at 2429.
In November 2004, the appellant filed a claim for entitlement to service
connection for
several different medical conditions including diabetes, leg neuropathy,
and bilateral knee
disabilities. R. at 2436-47. After considering the appellant’s SMRs, VA
treatment records from
2003 to 2005, and a compensation and pension (C & P) examination for
peripheral neuropathy on
2005, the regional office (RO) granted service connection for peripheral
neuropathywith a disability
rating of 10%, but denied entitlement for service connection for the
appellant’s bilateral knee
condition and hypertension in April 2005. R. at 2375-88.
The RO received additional VA medical treatment records after the
appellant filed a Notice
of Disagreement. The treatment records from November 30, 2005, document
that the appellant
complained of chronic pain in several joints, including his knee. R. at
2275. The records also
document a diagnosis of hypertension from 1993 and arthroscopic knee
surgeryin 1988. R. at 2766.
The appellant’s treatment records from June 2005 document a surgical
history of “R[ight] knee x 2
for [a] Baker’s cyst [and] tendon repair.” R. at 2217. The RO granted
service connection for
hypertension in March 2006, but assigned a noncompensable disability
rating. R. at 1398-1402.
The appellant’s C & P examination for hypertension and peripheral
neuropathy from June
2006 documents hypertension and right kneecap surgery in 1974. R. at 1304-
11. Following the
appellant’s Substantive Appeal, the RO obtained additional VA and private
medical records that
included blood pressure readings from 2007 and surgical histories
documenting two right knee
arthroscopic surgeries. R. at 125, 265, 1164. The RO issued a Supplemental
Statement of the Case
in May 2007, which continued to deny the appellant’s claims. R. 988-92.
2
On March 23, 2009, the appellant appeared at an informal hearing before
the Board. He
argued that his claims for peripheral neuropathy and hypertension should
be remanded to the RO for
a contemporaneous medical examination. R. at 21-22. The appellant’s
representative argued: “The
veteran believes that remand is necessary in this case because medical
information of record is no
longer probative . . . .” R. at 21. He also argued that his claims for his
bilateral knee conditions
should be remanded formedicalexaminations to
determinetheetiologyoftheconditions and for VA
to obtain medical records relating to his right knee surgeries. R. at 22-
24. In May 2009, the Board
issued its decision granting an increased disability rating for peripheral
neuropathy, but denying the
appellant’s other claims. R. at 3-19.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table).
A. Medical Examinations for Knees
The appellant argues that the Secretary breached his duty to assist by
failing to provide a VA
medical examination to determine the etiology of his bilateral knee
conditions. Appellant’s Brief
(Br.) at 6. In particular, he asserts that the evidence establishes that
he suffers from a current
bilateral knee disability and that his lay observations of a “persistent
and chronic knee condition
since service” and medical records documenting pain in both knees are
sufficient to demonstrate the
disability. Id.
In response, the Secretary argues that the Board properly determined that
there was
insufficient evidence to show that there is a current disability in either
knee, a chronic disability of
the left knee in service, and an in-service injury to the right knee.
Secretary’s Br. at 3-7. Further, he
respondsbyarguingthattheappellant’s “vague”assertionsofa”
persistentandchronickneecondition”
3
are insufficient to establish entitlement to an examination and that
without evidence of an in-service
injury of the right knee an examination could not provide the basis for
service connection. Id. at 7.
Where the following four criteria are present, the Secretary is required
to provide a medical
examination to a veteran seeking disability compensation: (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; (3) an indication that the
disability or persistent symptoms of
a disability maybe associated with the veteran’s service or with another
service-connected disability;
and (4) insufficient competent medical evidence on file for the Secretary
to make a decision on the
claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. §
5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, “taking into consideration all information and lay or medical evidence (including statements of the claimant).” 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a “low threshold,” McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
The Court reviews the Board’s conclusion that a medical examination or
opinion is not
necessary pursuant to section 5103A(d) under the “arbitrary, capricious,
an abuse of discretion, or
otherwise not in accordance with the law” standard of review pursuant to
38 U.S.C. § 7261(a)(3)(A).
McLendon, 20 Vet.App. at 81. The Board’s underlying determinations whether
the appellant has a
currentdisabilityandwhethertheappellantsufferedanin-serviceevent,injury,
ordiseasearefindings
of fact subject to the “clearly erroneous” standard of review. Id. at 82;
see 38 U.S.C. § 7261(a)(4).
In the decision here on appeal, the Board found that the evidence failed
to establish that the
appellant suffered from a left or right knee disability. R. at 6. The
Board stated that “the records tend
to show that he had no chronic disability of the left knee or injury to or
disability of the right knee
during service.” Id. The Board went on to state: “[A]s there is no medical
evidence of record of a
current left or right knee disability or of a chronic left or right knee
disability in service, under the
facts of this case, the Board has no duty to provide a VA examination or
obtain a medical opinion.”
R. at 16.
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The Board found that because of the absence of an “underlying pathology”
the appellant did
not suffer from a bilateral knee disability, even though the appellant
suffered from chronic knee pain.
R. at 7. While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant’s chest pains
may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A)). Consequently, the
appellant’s observations of persistent and chronic knee pain combined with medical records documenting
pain in both of his knees and a history of knee surgeries may be sufficient to establish “competent evidence of a current disability or persistent or recurrent symptoms of a disability.” McLendon, 20 Vet.App. at 81. There is no requirement that the appellant present evidence of a chronic knee disability in service. See id.
Therefore, the Court will vacate the Board’s decision and remand the
matter for the Board to consider
whether the record contains “competent evidence of . . . persistent and
recurrent symptoms of a
[bilateral knee] disability” and whether the symptoms may be associated
with the appellant’s service.
See id.
With respect to the right knee, the Board also determined there was no in-
service injury. The
Court finds that the Board failed to provide an adequate statement of
reasons or bases with regard to
its determination. See R. at 6; Allday v. Brown, 7 Vet.App. 517, 527 (1995
) (the Board must provide
a statement of reasons or bases adequate to enable a claimant to
understand the precise basis for its
determination, and to facilitate review in this Court); and Caluza, 7 Vet.
App. at 506 (holding that
Board must analyze the credibility of all evidence and provide the reasons
for its rejection of any
material evidencefavorableto theclaimant). TheBoardstatedthat:”[s]
ervicetreatmentrecordsshow
that the Veteran was treated for a twisted left knee in November and
December 1967.” R. at 5.
However, the Board failed to explain how it reached this conclusion. There
is ambiguity in whether
the injuries in service are for only the left knee or for both knees. See
R. at 2451. The SMR entries
on November 27 and December 8 list only”twistedknee”without explaining
which knee was treated.
Id. Furthermore, in his separation physical, the appellant complained of a ”
trick” or locked knee
without indicating which knee, or knees, the condition pertained to. R. at
2455. The Board’s
conclusory statement does not provide the Court with the kind of
discussion required for it to
5
ascertain whether the Board fully considered the ambiguities in the
appellant’s records. Where
appellatereview is frustrated because the Board provided inadequate
reasons or basesfor its decision,
remand is the appropriate remedy. See Cogburn v. Nicholson, 19 Vet.App.
427, 430 (2006).
Accordingly, on remand, the Board must also reevaluate the evidence and
provide an adequate
statement of reasons or bases for its determination whether the record
demonstrates that the appellant
sustained an in-service injury to his right knee.
When deciding whether an examination is necessary, the Board is reminded
that it shall
consider the evidence of record, “taking into consideration all
information and lay or medical
evidence (including statements of the claimant).” 38 U.S.C. § 5103A(d)(2);
see, e.g., R. at 22, 2275
(appellant’s lay statements that he has suffered from a persistent and
chronic knee condition since
service, and VA treatment records documenting complaints of chronic pain
in the knee); R. at 2217
(appellant’s medical records that list two right knee surgeries for a
Baker’s cyst and tendon repair
under past surgical history); R. at 2428 (radiological report that stated
that the x-ray of the appellant’s
left knee showed “[o]ld adductor magnus insertion avulsion, which is solid
healed with deformity”);
R. at 2430 (appellant’s medical records indicating right knee arthroscopic
surgeryin 1988 and “fx left
patella”); and R. at 2455 (separation physical fromMarch1970thatreported a ”
trick”or locked knee).
If, after applying the McLendon elements, the Board determines that a
medical examination is not
warranted, it must provide an adequate statement of reasons or bases in
support of its decision.
Duenas v. Principi, 18 Vet.App. 512, 519 (2004).
B. Contemporaneous Examinations for Hypertension and Peripheral Neuropathy
The Secretary’s dutyto assist requires a thorough and contemporaneous
medical examination
when the record does not adequately reveal the current state of the
claimant’s disability. See
38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991);
see also
Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and
a contemporaneous
examination is necessarywhen the “evidence indicates there has been a
material change in a disability
or that the current ratingmaybe incorrect.” 38 C.F.R. § 3.327(a) (2011);
seePalczewski v. Nicholson,
21Vet.App. 174, 182 (2007) (submission of new evidence or allegation that
a disability has worsened
may require a new medical examination to be provided, but “mere passage of
time between those
6
events does not”); Caffrey, 6 Vet.App. at 381 (finding 23-month-old
examination too remote to be
contemporaneous where appellant submitted evidence indicating disability
had since worsened);
Olson v. Principi, 3 Vet.App. 480, 482 (1992) (“Where the veteran claims a
disability is worse than
when originally rated, and available evidence is too old to adequately
evaluate the current state of the
condition, the VA must provide a new examination.”).
Here, the Board did not address whether the duty to assist required VA to
obtain another
medical examination. The Board reviewed the March 2005 and June 2006 VA
examinations for
blood pressure readings, and based its peripheral neuropathy rating
decisions on a June 2006
examination. R. at 9-10.
The Court finds that the Board did not provide adequate reasons and bases
for its decision to
rely on the 2005 and 2006 examinations given the appellant’s argument at
his 2009 hearing that the
medical examinations before the Board were not adequate to describe his
current medical conditions.
R. at 21 (“The veteran believes that remand is necessary in this case
because medical information of
record is no longer probative regarding the severity of his peripheral
neuropathy of the right lower
extremity and hypertension[.]” (emphasis added)). The Secretary argues
that the appellant did not
allege that his conditions had worsened; instead, he argues that the
appellant was only basing his
request for a new examination on the passage of time. Secretary’s Br. at 7-
8. Although the appellant’s
argument is not a model of clarity, it is clear that he questioned the
adequacy of the medical evidence
of record and the Board did not address his assertions, frustrating
judicial review.
Accordingly, the Court will remand the appellant’s claim for increased
disability ratings for
hypertension and peripheral neuropathy for the Board to provide an
adequate statement of reasons or
bases for its decision. See 38 U.S.C. § 7104(a), (d)(1); Duenas, 18 Vet.
App. at 519 (remanding for
Board to provide an adequate statement of reasons and bases for its
decision that a VA medical
examination was not required).
C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that “[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
7
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the Board
rule against him”). On remand, the appellant is free to submit additional
evidence and argument on
the remanded matters, and the Board is required to consider any such
relevant argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
“[a] remand is meant
to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring the Secretary to provide for “expeditious treatment” of
claims remanded by the
Court.).
III. CONCLUSION
Afterconsideration of the appellant’s and theSecretary’s pleadings,
andareviewof the record,
the Board’s May 19, 2009, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: September 21, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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