Single Judge Application, Pain, C.F.R. 3.159(c)(4)(i)(A), Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006)

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))." ==================================== "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) ===================================== ---------------------------------------------------- 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. 4 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) 8