Veteranclaims’s Blog

August 23, 2021

Single Judge Application; In Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit overruled nearly 20 years of precedent when it held that “pain in the absence of a presently diagnosed condition can cause functional impairment,” which may qualify as a “disability” under 38 U.S.C. § 1110. 886 F.3d at 1368, overruling Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); The Federal Circuit held that pain alone may constitute a disability if it causes functional impairment, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); The Federal Circuit’s decision provides a means of establishing service connection without an explicitly diagnosed condition;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1615
TYRONE HARTMAN, APPELLANT,
V.
DENIS MCDONOUGH,
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: The self-represented appellant, Tyrone Hartman, appeals a
December 17, 2019, Board of Veterans’ Appeals (Board) decision in which the Board reopened
and denied a claim for service connection for left knee degenerative joint disease (DJD) claimed
as chondromalacia. Record (R.) at 5-9. The Board’s decision to reopen the claim is favorable to
the appellant and the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170
(2007). This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to
38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of
“relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the part of the
December 17, 2019, decision that denied service connection for left knee DJD claimed as
chondromalacia and will remand the matter for readjudication consistent with this decision.
I. BACKGROUND
Mr. Hartman served on active duty in the U.S. Air Force from October 1969 to August 1979. R. at 921-23. 3. In September 1973 he injured his left knee playing basketball. R. at 1872. In
June 1974, he reported continued left knee pain, especially on bending, and he had a small effusion
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in the left knee. Id. A physician prescribed medication and rest and advised Mr. Hartman to avoid
bending or kneeling. Id. In October 1974, Mr. Hartman reported continued left knee pain that did
not respond to therapy. R. at 1872. Some crepitus was noted on patellar movement, and the
physician’s impression was chondromalacia. Id. In April 1975, Mr. Hartman again sought
treatment for his left knee and was prescribed an ace wrap and crutches for 7 to 10 days. R. at

In August 1975, Mr. Hartman received a permanent physical profile that prohibited any
“deep bending of knees or crawling on knees.” R. at 2982. In September 1978, Mr. Hartman
continued to seek treatment for left knee pain and was diagnosed with chondromalacia patella. R.
at 2968. An arthrogram was ordered to rule out a torn medial meniscus. R. at 2968. The report of
a November 1978 arthrogram of the left knee is illegible in parts but appears to show either “no”
or “nonsignificant” abnormalities. R. at 2976. In June 1979, Mr. Hartman reported the left knee
locking and giving way frequently, with examination showing occasional crepitus and tenderness
on percussion of the patella. R. at 2970. The physician gave an impression of patellofemoral
arthritis and again ordered an arthrogram to rule out a meniscus injury. Id. A June 1979
radiographic report showed normal left knee–”no change since 3 Nov 1978.” R. at 2973. In July
1979, Mr. Hartman complained of continued left knee pain for several years and was prescribed
medication. R. at 2979.
In October 2001, Mr. Hartman requested service connection for left knee chondromalacia,
asserting that he was in constant pain and that he had “decreased physical ability” as a result of the
condition. R. at 2998. In a January 2002 rating decision, a VA regional office (RO) denied service
connection for left knee chondromalacia, finding that his in-service complaints were not shown to
have resulted in a permanent residual or chronic disability. R. at 2894. In January 2003, Mr.
Hartman sought medical treatment for left knee pain. R. at 849-50.
Mr. Hartman attempted to reopen his claim in May 2009, R. at 2348, and the RO provided
a medical examination and opinion in September 2009. R. at 2266-70. During the examination,
Mr. Hartman reported that left knee pain began during active duty, and the physician noted that
service records documented several evaluations for left knee pain with conservative treatment and
a diagnosis of chondromalacia patella. R. at 2266-67. Mr. Hartman described left knee symptoms
including pain, stiffness, weakness, incoordination, decreased speed of joint motion, and giving
way. R. at 2267. He reported being able to walk 1 to 3 miles but being able to stand for less than
5 minutes. Id. On examination, Mr. Hartman displayed an antalgic gait with pain with active
3
motion on the left side and flexion limited to 80 degrees, compared to no pain on motion on the
right side with flexion limited to 120 degrees. R. at 2268. The left knee was tender to palpation,
and pain started and ended at 80 degrees. Id. X-rays showed minimal DJD in both knees, with the
right knee worse than the left. Id. The examiner was asked to opine on whether Mr. Hartman’s
“DJD, left knee [is] due to or a result of in-service event, injury or illness?” R. at 2270. The
examiner opined: “The bilateral nature and mild severity of the DJD indicate the condition is due
to the aging process and/or his years of labor after leaving active duty.” Id. The RO denied the
claim in a September 2009 rating decision. R. at 2264-65. After Mr. Hartman requested
reconsideration of his claim, the RO continued to deny service connection for chondromalacia in
a March 2010 rating decision. R. at 2154-56.
In August 2011, Mr. Hartman again sought to reopen his claim for service connection for
a left knee condition, noting that his service treatment records showed that he had arthritis in the
left knee. R. at 2136. In a May 2013 rating decision, the RO denied the claim because Mr. Hartman
missed a scheduled examination. R. at 2045-53. In March 2014, Mr. Hartman disagreed with the
denial, explaining that he had good cause for missing the examination and was willing to report to
a new examination. R. at 2013.
In August 2014, Mr. Hartman underwent a new examination, reporting that he had been
experiencing left knee pain since his military service. He stated that he experienced pain daily but
did not take medication. R. at 1987. Left knee flexion was 140 degrees or greater with pain on
movement, which the examiner described as functional loss. R. at 1988, 1990. The examiner was
asked to opine on whether “DJD left knee is due to or a result of military service.” R. at 1993. The
examiner opined that although Mr. Hartman was seen in service for left knee pain, his service
medical records contained no evidence of chronic knee pain, nor was there evidence Mr. Hartman
suffered chronic knee pain after active duty. R. at 1994. The examiner opined that Mr. Hartman
suffered chronic knee pain only recently, attributing Mr. Hartman’s bilateral knee arthritis to aging
and genetics. Id. In a September 2014 rating decision, the RO continued to deny service connection
for left knee chondromalacia. R. at 1929-31. Mr. Hartman disagreed with the decision, R. at 1681-
82, and in a January 2018 Statement of the Case, the RO continued to deny service connection for
left knee chondromalacia. R. at 1576-1613. Mr. Hartman appealed to the Board. R. at 1572.
In the December 2019 decision on appeal, the Board denied service connection for left
knee DJD, finding that the condition did not manifest during service or within 1 year of service.
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R. at 8. The Board found that Mr. Hartman had met the requirement of a current disability since
September 2009, R. at 7, but that his DJD was not related to service. R. at 9. The Board
acknowledged that in 2009 and 2014, Mr. Hartman had reported that he suffered left knee pain
since service, but that when he sought VA treatment for left knee pain in 2003, he reported having
experienced left knee pain only for the past several months. Id. The Board found that Mr. Hartman
was not competent to diagnose DJD or to opine as to its origin, and the Board assigned more
probative value to the September 2009 and August 2014 VA examiners ‘ opinions that Mr.
Hartman’s left knee DJD was less likely than not due to military service and more likely due to
aging, years of labor-intensive work since service, and genetics. Id.
On appeal, Mr. Hartman argues that the Board erred by only addressing DJD and failing to
construe his claim to include the condition he specifically claimed, chondromalacia, which he
believed caused permanent knee impairment. Appellant’s Brief (Br.) at 6-7. He also argues that the
Board erred in failing to discuss whether he was entitled to presumptive service connection for a
chronic disease under 38 C.F.R. § 3.303(b). Id. at 4. The Secretary responds that the Board did not
err in failing to address chondromalacia because the Board was required to sympathetically
develop his claim, and the Secretary asserts that “the information obtained in developing [Mr.
Hartman’s] claim revealed that [his] only current knee condition was DJD.” Secretary’s Br. at 7-9.
The Secretary alternatively asserts that any error in not addressing chondromalacia was not
prejudicial because there was no current diagnosis of chondromalacia. Id. at 9-12. The Secretary
also responds that the Board did not need to discuss presumptive service connection under
§ 3.303(b) for chondromalacia because the presumption is limited to chronic conditions recognized
by the Secretary under § 3.309(a), and chondromalacia is not one of those conditions. Id. at 12-15.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the present disability.
Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). The Board’s determinations regarding
service connection are findings of fact subject to the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); see Davis v. West, 13 Vet.App. 178, 184 (1999). “A factual finding ‘is
“clearly erroneous” when although there is evidence to support it, the reviewing court on the entire
5
evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
The Board is required to address all issues and theories that are reasonably raised by the
claimant or the evidence of record. Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub
nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). However, VA has a duty to “give a
sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the
evidence, applying all relevant laws and regulations.'” Szemraj v. Principi, 357 F.3d 1370, 1373
(Fed. Cir. 2004) (citing Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). This includes
“investigat[ing] the reasonably apparent and potential causes of the veteran’s condition and theories
of service connection that are reasonably raised by a sympathetic reading of the claimant’s filing.”
Delisio v. Shinseki, 25 Vet.App. 45, 53 (2011). A claim for service connection may be expanded
beyond a veteran’s lay description of a disability, to any disability “that may reasonably be
encompassed by several factors including: the claimant’s description of the claim; the symptoms
the claimant describes; and the information the claimant submits or that the Secretary obtains in
support of the claim.” Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (per curiam order).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its determination with an adequate statement of reasons or bases that enables the
claimant to understand the precise basis for that determination and facilitates review in this Court.
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence it finds persuasive or unpersuasive, and provide its reasons for rejecting material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Hartman argues that the Board erred by only addressing DJD and failing to construe
his claim to include the condition he specifically claimed, chondromalacia, which he believed
caused permanent knee impairment. Appellant’s Brief (Br.) at 6-7. In the claim on appeal, Mr.
Hartman sought service connection for left knee chondromalacia, R. at 1681, and generally for a
left knee condition, R. at 2136; Secretary’s Br. at 9. The RO described his claim as a reopened
claim for service connection for left knee chondromalacia throughout the appeal. R. at 2046 (May
2013 rating decision), 1912 (Sept. 2014 rating decision), 1612 (Statement of the Case). Without
6
the Board explaining why it was considering his claim for chondromalacia or a left knee condition
as only a claim for left knee DJD, it is unclear how Mr. Hartman could understand the basis for
the Board’s decision. See Gilbert, 1 Vet.App. at 56-57. The Board erred in not addressing Mr.
Hartman’s explicit claim for chondromalacia. See Robinson, 21 Vet.App. at 553 (holding that the
Board errs when it fails to discuss a theory of entitlement to VA benefits that was raised by the
claimant).
The Secretary attempts to explain that DJD was the only left knee diagnosis revealed during
the development of Mr. Hartman’s claim, citing an August 2014 diagnosis of left knee DJD with
onset in 1979. Secretary’s Br. at 9 (referencing R. at 1987). But it does not appear that the Board
relied on this finding, as the Board found that while there was a single diagnosis of arthritis in
1979, the orthopedist making this diagnosis ordered an arthrogram that stated that Mr. Hartman’s
left knee was normal. R. at 8. And the Board did not find that DJD was the only diagnosis of a left
knee condition; rather, while assessing whether new and material evidence had been submitted,
the Board explained that Mr. Hartman’s original claim for service connection was denied based on
a lack of a diagnosis, but that x-rays were required to establish a diagnosis of arthritis. R. at 7. The
Board found that Mr. Hartman had submitted new and material evidence because x-rays supported
an arthritis diagnosis as of September 2009. R. at 7. The Court cannot accept the Secretary’s post
hoc rationalizations to make up for the Board’s inadequate reasons and bases. See Simmons v.
Wilkie, 30 Vet.App. 267, 277 (2018).
The Court must take due account of prejudicial error. 38 U.S.C. § 7261(b); Conway v.
Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). As the Secretary points out, Mr. Hartman has
not provided evidence of a current left knee chondromalacia diagnosis. Secretary’s Br. at 9.
However, Mr. Hartman argues that he is seeking service connection for “permanent impairment”
of the left knee caused by chondromalacia that he was diagnosed with during service. Appellant’s
Br. at 6.1 The Court discerns that he is asserting that he has current disability of the left knee caused
by chondromalacia that is separate from DJD. This Court has held that when a claimant files a
claim for compensation, it is not “to receive benefits only for a particular diagnosis, but for the
affliction his . . . condition, whatever that is, caused him.” Clemons, 23 Vet.App. at 5. In Saunders
1 Just after Mr. Hartman’s counsel filed Mr. Hartman’s opening brief, the Court approved counsel’s request to
withdraw as Mr. Hartman’s representative on October 7, 2020, as a result of counsel’s suspension from this Court’s
bar. The appellant is now self-represented.
7
v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit overruled nearly 20 years of precedent when it held that “pain in the absence of a presently diagnosed condition can cause functional impairment,” which may qualify as a “disability” under 38 U.S.C. § 1110. 886 F.3d at 1368, overruling Sanchez-Benitez v. West, 13 Vet.App. 282, 285
(1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Federal Circuit held that pain alone may constitute a disability if it causes functional impairment, even without an identifiable underlying pathology.
Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit’s decision provides a means of establishing service connection without an explicitly diagnosed condition.

Although the Court is not making any determinations regarding whether Mr. Hartman has
a current disability other than DJD, we are permitted to review the record for prejudicial error. See
Vogan v. Shinseki, 24 Vet.App. 159, 164 (2010) (finding that this Court is permitted to look beyond
the Board’s decision to review the record of proceedings when identifying prejudicial error). In
Mr. Hartman’s September 2009 and August 2014 VA examinations, the examiners described
functional impairment of the left knee with pain. R. at 2268 (observing left knee antalgic gait, pain
on palpation, and pain with 80 degrees of flexion), 1998-90 (finding left knee pain with flexion
resulting in functional loss). The Board’s error was prejudicial, because if the Board had considered
Mr. Hartman’s claim more broadly it may have found a current left knee disability other than DJD
and may have made different findings as to whether any current disability was related to in-service
chondromalacia. Accordingly, the Court finds the Board’s decision lacks adequate reasons or
bases. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate
remedy “where the Board has incorrectly applied the law, failed to provide an adequate statement
of reasons or bases for its determinations, or where the record is otherwise inadequate”).
Because the Court finds that remand is warranted, the Court will decline to address Mr.
Hartman’s remaining arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (noting that the
factual and legal context may change following a remand to the Board and explaining 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. Hartman is free to submit additional evidence and argument on the
remanded matter, including the arguments raised in his brief, and the Board is required to consider
any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002);
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Kutscherousky v. West, 12 Vet.App. 369, 372 (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).
III. CONCLUSION
After considering the foregoing analysis and the parties’ briefs, and after reviewing the
record, the Court VACATES the part of the Board’s December 17, 2019, decision that denied
service connection for left knee DJD claimed as chondromalacia and REMANDS the matter for
further proceedings consistent with this decision.
DATED: July 7, 2021
Copies to:
Tyrone Hartman
VA General Counsel (027)

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