Citation Nr: 0809742 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 02-16 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an above-the-knee amputation of the right leg, secondary to service-connected gout. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from March 1959 to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2005 the Board remanded this claim to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDING OF FACT The veteran's right knee disorder (i.e., above-the-knee amputation of the right leg) is not shown by the objective evidence of record to be caused or aggravated by a service- connected disability. CONCLUSION OF LAW The criteria for service connection for an above-the-knee amputation of the right leg, secondary to service-connected gout, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should give us everything you've got pertaining to your claims. In the instant case, the veteran did not receive notification prior to the initial unfavorable agency decision in September 2000. The veteran was sent a notice letter in March 2001 that did not meet the requirements noted above. Additional letter were sent to him in July 2002 and January 2006. The notice letters informed the veteran that he could provide evidence to support his claim for service connection or location of such evidence and informed him that he could obtain evidence and send it himself. The letters notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claims, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. It is the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. This notice must also include the information pertinent to the relevant disability rating and an effective date for the award of benefits that would be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. As the Board concludes below that the preponderance is against the veteran's claim and no disability rating or effective date will be assigned, there is no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Recognition is also given to the fact that the complete VCAA notification was sent after the initial adjudication of the veteran's claim. However, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Although full VCCA-complying notice was not provided prior to the initial adjudication of the claim the veteran had ample opportunity to respond, supplement the record, and participate in the adjudicatory process after the notice was given, and the case was then readjudicated by the RO. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records have been obtained. VA treatment records as well as private treatment records are also on file. No other treatment records have been identified. A VA examination has been conducted and a medical expert's opinion has been obtained. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. The veteran does not contend, nor does the evidence show, that his right knee disorder is related to his active service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Rather, the veteran contends that his service-connected gout either caused or aggravated his right knee disability that eventually resulted in his having an above knee amputation. See 38 C.F.R. § 3.10. The Board has reviewed the extensive record which does not reflect that the veteran was treated in service for right knee complaints or for many years thereafter. The veteran's June 1958 pre-induction examination report and his March 1959 induction examination report show his lower extremities were clinically normal. The service medical records show no right knee complaints or treatment. At separation in June 1979, there is no history of knee problems and examination of the upper extremities was normal. After service, the first indication in the record of right knee treatment occurs in July 1980, when the veteran was involved in a moped accident, and a laceration of the right knee was noted when he was treated at the Darnall Army Medical Hospital. The laceration was sutured, and it was noted that there was no fracture. In November 1981 he was seen for a complaint of the incomplete tear of the medial collateral right knee not resolving, and the knee was immobilized. In December 1981, he was again seen for right knee pain. He was subsequently evaluated that same month at the Metroplex Hospital and underwent an arthrotomy and lateral retinacular release of chondrolmalacia of the patella for a torn meniscus. As noted by way of history in a private hospital discharge report of April 1984, in 1982 the veteran underwent a Marquet procedure for patellofemoral arthritis. In April 1984, he underwent a right total knee replacement (TKA). He developed an infection in September 1999, and subsequently, in April 2000, the veteran underwent an above the knee amputation (AKA) due to osteomyelitis. The veteran asserts that his right knee problems leading to amputation are related to his service-connected gout. The record reflects that in November 1980, the RO granted service connection for gout, based on the in service finding of elevated uric acid in 1977 which the RO found was consistent with the diagnosis of gout, and the VA examination in August 1980 which showed elevated uric acid and a diagnosis of gouty arthritis. Since the veteran has had right knee treatment leading to amputation, and a service-connected disorder, in order to prevail there must be competent medical evidence of a nexus between the disorders. There is both positive and negative evidence in the file regarding the etiology of the veteran's right knee complaints. Medical evidence that tends to support the veteran's claim includes private treatment records from a clinician which show that in March 1984, the veteran complained of problems with knee, which it was noted had become more symptomatic. Examination showed some creptitation. The examiner noted that the veteran would be scheduled for a total knee arthroplasty. It was reported that with the diagnosis of gouty arthritis it probably explains the positive bone scans the veteran has been having. In May 1984, the examiner stated that the veteran was having a lot of reactivity about the knee and a flare-up of his gouty arthritis. In a December 1984 the veteran was noted to have pain in the knee due to chronic synovitis. The examiner stated that it was felt that the chronic persistent synovitis is due to his gouty arthritis. On the other hand, evidence which is against the veteran's claim consists of a July 2006 VA examination report and an August 2007 medical expert opinion. The veteran was examined by VA in July 2006. The claims file was reviewed by the examiner, and the veteran's history was noted. The examiner stated that he could find no evidence of elevated uric acid. He opined that the right knee disorder is less than likely related to the veteran's gout but rather related to a total meniscectomy performed in 1981 after a moped accident, which resulted in an imbalance in the knee and what appears to be a patellofemoral dysfunction that did not respond to treatment with a tibial tuberosity transfer. The examiner found that there was no connection with the veteran's gout, and the examiner questioned whether the veteran had gouty arthritis as opposed to post-traumatic arthritis. The examiner also stated that the veteran's knee condition was not aggravated by the existence of gouty arthritis. In April 2007, the Board sought a medical expert's opinion regarding the etiology of the veteran's right knee complaints. A response dated in August 2007 was received. The medical expert noted that he spent several hours reviewing the veteran's claims file. The clinician initially presented a detailed summary of the veteran's clinical course, outlining treatment beginning in March 1980 with treatment at Darnall Army Medical Hospital and continuing until the July 2006 VA examination report. After a thorough and detailed review of the veteran's medical history, it was the opinion of the physician that it is less likely that the veteran's service-connected gout caused the veteran's right knee disability and the events which necessitated is right TKA and subsequent right above knee amputation (AKA) for osteomyelitis. The medical clinician stated that the records suggest a clinical diagnosis of gout. It was noted that in 1980, 1982, 1983 and 1988 the veteran presented with a complaint of acute onset of pain and redness of the great toe area, and that he was treated with anti-inflammatories with relief of symptoms. It was stated that the clinical presentation and the response to anti-inflamitories is highly suggestive of a clinical diagnosis of gout. The physician reported that there was no evidence that the veteran's gout caused his right knee disability. It was pointed out that the veteran was involved in a moped accident in 1980 and by late 1981, he had complaints of pain and knee swelling. It was stated that joint fluid removed when the veteran had surgery in 1981 did not reveal any uric acid crystals, and that the arthroscopy and surgical report of the right knee did not specifically describe the finding of any tophaceous deposits of gout in the right knee. It was further noted that in March 1984, the veteran underwent a TKA and that on inspection of the knee, extensive degenerative changes were found and there was no mention of tophaceous gouty deposits in the knee at the time of open surgical inspection. The doctor also stated that while the knee was in 1984 and 1985 injected with corticosterioids and/or NSAIDs, there was no relief from pain or swelling, and that in 1984 the private clinician opined that the right knee synovitis was due to the veteran's gouty arthritis. It was pointed out that by March 1985, however, the private clinician concluded that the veteran was probably having a reaction against the metal and plastic of the joint replacement developing a giant cell synovitis. The expert also noted that while there was a finding of granulomas to suggest gout in May 1985, the evidence does not support such a finding and that this was a nonspecific finding, not a diagnostic of gout and could also be the result of a metal/plastic-wear synovitis from the knee replacement. The medical expert also noted that in August 1991, the right knee was aspirated and the synovial fluid analysis did not show any foreign material or crystals, and as well fluid collected in January 2000 showed no crystals. Also an April 2000 pathology report did not mention any findings of tophaceous gout. The medical expert summarized that it is less than likely that the veteran's gout caused the right knee disability and the events which necessitated his TKA and subsequent AKA for osteomyelitis. It was noted that although the veteran has presumptive gout, by clinical presentation of great toe pain and response to NSAIDs, there is no evidence by synovial fluid analysis, gross inspection of the right knee by arthroscopy and open surgical procedures, pathology reports or lack of response to treatment for gout that the veteran ever had gout of his right knee. The examiner reported that he concurred with the VA examiner of July 2006, that the right knee disorder was not related to the veteran's clinical history of gout and is in fact related to the veteran's traumatic knee injury in 1980 with a resultant medial meniscal tear requiring a medial meniscectomy in December 1981. It was reported that the veteran subsequently developed degenerative changes of the knee requiring a total knee replacement in 1984. It was stated that the chronic synovitis of the knee was more than likely related to metal/particle-induced synovitis from the prosthesis as there is no objective evidence of gout of the right knee. Further that the veteran developed a septic right TKA, a potential complication of joint replacement, which progressed to osteomyelitis of the distal femur requiring above the knee amputation. The clinician stated that the objective evidence does not support that gout caused the right knee disability. The medical expert also reported that it is less likely that the veteran's service- connected gout aggravated his right knee disability to the extent that TKA was ultimately required since there is no objective evidence that the veteran ever had gout of his right knee by synovial fluid analysis, gross inspection of the right knee by arthroscopy and open surgical procedures, pathology reports or lack of response to treatment for gout. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the July 2006 VA medical opinion and the August 2007 medical expert opinion hold the greatest probative value. In this respect, both examiners had access to the entire claims folder, specifically and correctly identified the laboratory results, defined and explained the findings as to the etiology of the veteran's right knee complaints, and offered rationale for findings that were specific and definitive and supported by the laboratory evidence of record. The March 1984 and December 1984 findings by the private examiner hold less probative value, as he on neither occasion had access to the veteran's claims file so as to review the veteran's complete medical history. The private examiner has not provided specific rationale for his findings. Additionally, the examiner's November 1984 finding was subsequently contradicted by a finding by the same examiner in March 1985 when he related the right knee problems to an allergic reaction. Further, although the veteran has expressed his own opinion that his right knee disorder is related to his service- connected gout, the Court has held that laypersons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause or etiology of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). For the reasons provided above, the preponderance of evidence is against the veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2007). ORDER Service connection for an above-the-knee amputation of the right leg, secondary to service-connected gout, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs