Veteranclaims’s Blog

May 16, 2014

Single Judge Application; Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013); Evidence Dated Prior to Claim May Be Relevant

Excerpt from decision below:

“In addition, as argued by the appellant, there is evidence predating the claim period that was not discussed by the Board. Appellant’s Brief (Br.) at 9. Although the Board noted that “other records dated in May 1986 note a complaint of bilateral knee pain” for the previous four years, it did not assess the implication of this finding on its McLendon analysis. R. at 8; see R. at 109, 111. The Court notes that, under Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013), evidence dated prior to the pendency of the claim may be relevant to determining the nature of a disability during the pendency of the claim. On remand, the Board should address this evidence.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3693
EUGENE DILL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: Eugene Dill appeals through counsel a September 28, 2012,
Board of Veterans’ Appeals (Board) decision that denied him entitlement to service
connection for left and right knee disabilities. Single-judge disposition is appropriate when the issue is of “relative simplicity” and “the outcome is not reasonablydebatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the September 2012 Board decision and remand the matter for adjudication consistent with this decision.

I. FACTS
Mr. Dill served in the U.S. Marine Corps from October 1969 to October 1971.
Record
(R.) at 205. His lower extremities were found to be normal on his October
1971 discharge
examination. R. at 168.
In May 1986, Mr. Dill sought treatment for knee pain at the University of
Alabama Medical
Center. R. at 100, 107, 109-11. He reported that he had experienced right
knee pain for several years,
including”flareups”ofpain. R. at 107, 109. A physical therapytreatment
record dated May13, 1986,
indicates that Mr. Dill also complained of having bilateral knee pain for
the “past [four] years.”

R. at 111. He was diagnosed with an “[e]xtensive posterior horn tear of
the medial meniscus with
degeneration of the entire meniscus” of the right knee. R. at 119-20. On
May28, 1986, he underwent
a right knee medial meniscectomy. R. at 97.
In November 2007, Mr. Dill filed a claim for entitlement to disability
benefits for several
conditions, including a “right knee condition” and a “bilateral knee
condition.” R. at 144. He stated
that while serving in Vietnam, he worked in communications and was
responsible for setting poles.
R. at 146. He stated that, as part of his duties, he had to “hang on the
poles all day in stringing the
wires,” and, after returning from combat, he continued to “deal with
setting/climbing poles while
serving with the Marines.” Id. He noted that he “fell off several poles
during this time and was
constantlyclimbing.” Id. He also stated that, “Ideveloped knee problems
while doing this but during
Vietnam I never complained [] as our Unit was under enough stress without
‘whiners’.” Id.
In July 2008, the VA regional office (RO) denied service connection. R. at
58-66. In August
2008, Mr. Dill filed a Notice of Disagreement. R. at 56. In February2009,
the RO issued a Statement
of the Case that continued to deny service connection, and Mr. Dill
appealed to the Board. R. at 31,
39-50. He stated that, “I was a lineman while in service and had to climb
many poles [] using my
knees and arms to support myself,” and that, “I feel that this caused
damage to my knees.” R. at 31.
He also stated that he “had one accident while climbing a pole and almost
fell about 20 feet,” but that
he caught himself. Id. In May 2009, Mr. Dill’s medical problem list was
noted to include
“[o]steoarthrosis involving the knee.”1
R. at 379, 382, 388; see also R. at 397.
In its September 2012 decision on appeal, the Board denied Mr. Dill
entitlement to service
connection for left and right knee disabilities. R. at 3-11. The Board
acknowledged that Mr. Dill was
not afforded a VA medical examination in conjunction with his knee claims.
R. at 6. However, the
Board determined that a VA medical examination was not required because Mr.
Dill did not have
a left knee disability at any time during the pendency of his claim, and
there was “no competent or
credible complaint or clinical finding for a clinician to link the claimed
right knee disability to [Mr.
Dill’s] military service.” R. at 8-11. The Board also concluded that there
was no event, disease, or
1
Osteoarthrosis is “osteoarthritis.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1345 (32d ed. 2012).
Osteoarthritis is “a noninflammatory degenerative joint disease seen
mainly in older persons, characterized by
degeneration of the articular cartilage, hypertrophy of bone at the
margins, and changes in the synovial membrane.” Id.
at 1344.
2

injury in service that would trigger the need for VA to provide an
examination. R. at 10.
On appeal, Mr. Dill argues that the Board erred in finding that VA had no
obligation to
provide him with a medical examination. He further argues that the Board’s
decision in this regard
lacks adequate reasons or bases. The Secretary disagrees and urges the
Court to affirm the Board’s
decision.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table).
Pursuant to 38 U.S.C. § 5103A, the Secretaryhas a dutyto assist claimants
in developingand
obtaining relevant evidence needed to substantiate their claims. For
disability compensation claims,
the Secretary’s duty to assist includes “providing a medical examination
or obtaining a medical
opinion when such an examination or opinion is necessary to make a
decision on the claim.”
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). A medical
examination or opinion is considered necessary
when there is (1) competent evidence of a current disability or persistent
or recurrent
symptoms of a disability, and (2) evidence establishing that an event,
injury, or
disease occurred in service or establishing certain diseases manifesting
during an
applicable presumptive period for which the claimant qualifies, and (3) an
indication
that the disability or persistent or recurrent symptoms of a disability
may be
associated with the veteran’s serviceor with anotherservice-
connecteddisability,but
(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); see 38 U.S.C. § 5103A(d
); 38 C.F.R.
§ 3.159(c)(4)(i) (2013).
The Board’s determination as to the first and second elements are reviewed
by the Court
underthe”clearlyerroneous”standard of review. McLendon, 20 Vet.App.
at81–82.Adetermination
3

as to the third element is reviewed under the “arbitrary, capricious, an
abuse of discretion, or
otherwise not in accordance with law” standard of review. Id. Finally, the
sufficiency of evidence
is generally a question of fact reviewed by this Court under the “clearly
erroneous” standard of
review. Id. at 85 (citing 38 U.S.C. § 7261(a)(4)).
The Board must provide a statement of the reasons or bases for its
determination, adequate
to enable an appellant to understand the precise basis for its decision,
as well as to facilitate review
in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995);
Gilbert v.Derwinski,1Vet.App.49,56–57(1990).Tocomplywith thisrequirement,
theBoardmust
analyze the credibility and probative value of the evidence, account for
the evidence it finds
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. Caluza, 7 Vet.App. at 506.
A. Left Knee
The Board determined that the first McLendon element was not satisfied
regarding Mr. Dill’s
left knee, because “there is no competent evidence of a current disability
.” R. at 8. The first
McLendon element requires “competent evidence of a current disability or
persistent or recurrent
symptoms of a disability.” McLendon, 20 Vet.App. at 81. The Court notes
that the Board did not
reference or discuss VA medical evidence indicating that “[o]steoarthrosis
involving the knee” was
listed in Mr. Dill’s 2009 records under “current medical problems.” R. at
382, 388 (capitalization
omitted); see also R. at 379, 397. It is unclear whether this diagnosis
applies to the right, left, or both
knees, but the Board should have discussed the issue. See Caluza, 7 Vet.
App. at 506.
In addition, as argued by the appellant, there is evidence predating the claim period that was not discussed by the Board. Appellant’s Brief (Br.) at 9. Although the Board noted that “other records dated in May 1986 note a complaint of bilateral knee pain” for the previous four years, it did not assess the implication of this finding on its McLendon analysis. R. at 8; see R. at 109, 111. The Court notes that, under Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013), evidence dated prior to the pendency of the claim may be relevant to determining the nature of a disability during the pendency of the claim. On remand, the Board should address this evidence.
Because the Board did not evaluate the evidence mentioned above, its finding that the first McLendon element was not satisfied regarding Mr. Dill’s left knee lacks adequate reasons or bases.
4

See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506. On remand, the
Board should determine
whether the evidence of record meets the first element of the McLendon
standard and, if so, continue
the McLendon analysis and determine whether a medical examination is
required. See
Tucker v. West, 11 Vet.App. 369, 374 (1998).
B. Right Knee
The Board found that there was medical evidence of a right knee disability.
R. at 9. However,
the Board determined that the second McLendon element was not satisfied,
because “the evidence
of record does not show any event, disease or injury in service that would
trigger the need for VA
to provide an examination.” R. at 10. The Court finds that the Board
failed to provide adequate
reasons or bases for this finding. See Allday, 7 Vet.App. at 527.
In discussing Mr. Dill’s duties in service, the Board found it significant
that he did not
“specifically state that he sustained an injury to either knee during
service.” R. at 9. However, the
Board failed to address Mr. Dill’s statement that he “fell off several
poles during [service] and was
constantlyclimbing,” and that he “developed knee problems while doing this
.” R. at 146. The Board
should have discussed Mr. Dill’s lay statements for the purpose of
determining whether a qualifying
event, injury, or disease occurred in service. See McLendon, 20 Vet.App.
at 82.
The Court recognizes that the Board, in its analysis, stated that, “to the
extent the Veteran
indicates his right knee problems originated with service, those
contentions appear inconsistent with
and contradicted by” other evidence of record. R. at 10. Mr. Dill argues
that the Board made no
explicit finding that his assertions were not credible. Appellant’s Br. at
10-12. The Court notes that,
to the extent that the Board made an implicit adverse credibility
determination, the scope of its
determination is unclear. The Court is unable to determine whether the
Board found Mr. Dill’s
assertions not credible with regard to his reported symptoms during
service, his statement that his
knee problems are related to service, or both.
To the extent that the Board implicitly determined that Mr. Dill’s lay
statements regarding
his knee problems during service were not credible, it dismissed those
statements, in part, due to the
fact that his lower extremities were evaluated as normal upon discharge
from service. R. at 10.
However,theappellant’s dischargeexamination wasconductedtwoweeks priorto
his discharge,and
Mr. Dill stated that during service, he “never complained [] as our Unit
was under enough stress
5

without ‘whiners’.” R. at 146, 168-69, 205. This statement is potentially
favorable evidence in
support of Mr. Dill’s claim because it may explain the absence of any knee
complaints during his
separation examination and, in turn, undermines the Board’s reasoning for
its negative credibility
finding. It should have been addressed. See Caluza, 7 Vet.App. at 506.
The Board also discounted Mr. Dill’s statement as to knee problems in
service based on a
finding that the post-service medical records “indicate the [right knee]
problems originated . . . in
1982.” R. at 10. However, that finding may not be entirely consistent with
the record. The Board’s
conclusion appears to be based on a May 1986 physical therapy report that
notes “[bilateral] knee
pain for past four years.” R. at 111; see R. at 8, 9 (Board found that at
least one medical record from
May 1986 noted a complaint of “bilateral knee pain.”). It is unclear
whether a reported period of
bilateral knee pain from 1982 to 1986 necessarily contradicts Mr. Dill’s
assertions that he had knee
problems in service. There is also no discussion in the report, elsewhere
in the record before the
Court, or in the Board’s decision that clearly indicates that Mr. Dill did
not experience some level
of pain with regard to his right knee prior to the reported 1982-86 period
of bilateral knee pain. See
R. at 10, 109, 111. Thus, the Board’s summary reference to the May 1986
medical record does not
adequately explain its finding. On remand, the Board should provide
sufficient reasons or bases for
any conclusion that Mr. Dill’s right knee “problems originated . . . in
1982.” R. at 10; see Allday,
7 Vet.App. at 527.
In addition, the Court notes that the Board’s statement that “[a] medical
opinion premised
upon an unsubstantiated account of a claimant is of no probative value,”
is an inaccurate statement
of the law. R. at 10; see Godfrey v. Brown, 8 Vet.App. 113, 121 (1995) (“
The Board is not required
to accept doctors’ opinions that are based upon the appellant’s recitation
of medical history”)
(emphasis added); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (finding
that a medical opinion
based on an inaccurate factual premise has no probative value) (emphasis
added).
Remand therefore is warranted for the Board to discuss the evidence noted
above pertaining
to Mr. Dill’s right knee and to properly apply McLendon in determining
whether a VA medical
examination is required for the right knee disability. See, e.g., Duenas v.
Principi, 18 Vet.App. 512,
519 (2004) (remanding for the Board to provide an adequate statement of
reasons and bases for its
decision that a VA medical examination was not required).
6

The Court will not at this time address any other arguments Mr. Dill has
raised. 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
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him”).
On remand, Mr. Dill is free to submit additional evidence and argument on
the remanded matters,
and the Board is required to consider any such relevant evidence and
argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002); 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
Based on the foregoing analysis, the record of proceedings, and the
filings of the parties, the September 28, 2012, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: May 8, 2014
Copies to:
Patrick A. Berkshire, Esq.
VA General Counsel (027)
7

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