Citation Nr: 0809795 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-07 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from September 1971 to September 1974. This matter comes to the Board of Veterans' Appeals (Board) from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for bilateral foot and knee conditions. The veteran was scheduled for an October 2007 Board hearing but did not appear or indicate any desire to re-schedule. The issue of service connection for a bilateral foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence shows no relationship between the veteran's bilateral knee disabilities and service, or the service-connected low back disability. CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by service, directly or presumptively; and is not proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in March 2004, October 2006, and January 2007, subsequent to the initial adjudication in September 2003. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a January 2005 statement of the case and supplemental statements of the case dated in March 2006 and August 2007, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the etiology of the disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran seeks service connection for a bilateral knee disability, which he relates to multiple parachute jumps in service or, alternatively, to his service-connected low back disability. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1110. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows some evidence of a present bilateral knee disability. An October 2005 VA x-ray examination report shows slight superior patellar spurring on the right knee. Other features appeared normal. There was no joint fluid chondrocalcinosis or evidence of a previous fracture. The examiner found minimal evidence for degenerative joint disease in the knees. A May 2007 VA radiology report shows some swelling anteriorly on the right knee and a possible small right effusion; other features appeared normal. The examiner found no constitutional symptoms of inflammatory arthritis but noted chronic degenerative changes in the knees. The service medical records are negative for any treatment to the knee. The DD-Form 214 shows, however, that the veteran earned the Parachute Badge. He is competent to state that he suffered injuries to his knees in service from the multiple parachute jumps; and there is no reason shown to doubt his credibility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the record shows a present bilateral knee disability and competent evidence of in-service injuries, the determinative issue is whether there is any relationship between these. An October 2005 VA examination report shows the veteran's reports that he completed 31 jumps as a paratrooper in service. The examiner found that the veteran's bilateral knee pain was less likely than not related to his parachuting injuries. A May 2007 VA examiner found that it was more than likely that the bilateral knee conditions were related to chronic degenerative changes as a result of aging and predisposition for osteoarthritic conditions. Based on these negative medical opinions, the evidence shows the present bilateral knee conditions are not related to service. Also, since any findings of degenerative arthritis were not shown until 2005, which is 31 years after service, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. There is some evidence to suggest a relationship between the veteran's bilateral knee conditions and his service-connected low back disability. A September 2002 VA neurosurgery outpatient report shows complaints of pain and numbness traveling from the low back down to the knees. A May 2007 VA examiner found, however, that review of orthopedic literature revealed no credible, peer-reviewed studies that supported the contention that post-traumatic degenerative changes of the spine might induce degenerative changes of the lower extremity joints. The negative evidence in this case outweighs the positive evidence. Although the veteran has argued that his bilateral knee disability is related to service or his service- connected low back disability, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered, they do not outweigh the medical evidence of record, which shows that there is no relationship between the veteran's present bilateral knee disability and service or the service-connected low back disability. Competent medical experts make this opinion and the Board is not free to substitute its own judgment for those of such experts. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a bilateral knee disability is denied. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral knee disability is denied. REMAND The veteran seeks service connection for a bilateral foot disability. He originally claimed the disability was an infection in the feet. He later mentioned that he had numerous injuries to his feet from multiple parachute jumps in service. Current medical records show diagnoses of degenerative changes in the bilateral feet, hallux valgus, hammertoes, and mild pes planus. The service medical records show that pes planus was noted at entry into service during an August 1971 examination and are negative for any findings of an increase in the pes planus disability during service. The DD-Form 214 shows, however, that the veteran earned the Parachute Badge in service, and he is competent to state that he suffered pain in the feet as a result of his multiple parachute jumps. There is no reason shown to doubt his credibility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, even though pes planus is not shown to be aggravated in service, a medical opinion is necessary to determine whether the present degenerative changes, hallux valgus, or hammertoes in the bilateral feet are related to the multiple parachute jumps in service. An October 2005 VA examination was provided but the examiner only commented on whether the bilateral pes planus was related to service. X-rays in October 2005 showed bilateral hallux valgus and an April 2002 VA bone imaging report showed degenerative changes in the bilateral feet. The October 2005 VA medical opinion is inadequate to resolve this claim. An additional factor to be considered is an April 2000 private medical record, which notes injury to the left foot after falling on the job. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA orthopedic examination to determine whether his present degenerative changes in the bilateral feet shown on a bone imaging report in 2002 or the bilateral hallux valgus, or the hammertoes reported in 2005, are at least as likely as not related to the multiple parachute jumps in service. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must provide a detailed rationale for all opinions. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. Then re- adjudicate the claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs