Citation Nr: 0812535 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-10 253 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE 1. Entitlement to service connection for a claimed right knee condition. 2. Entitlement to service connection for a claimed left knee condition, to include as secondary to service-connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active service from October 1969 to October 1971 and a verified period of active duty for training from June 1991 to July 1991. He performed additional service with the Reserve including as a member of the National Guard from September 1984 to April 1995. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2003 RO rating decision. In January 2006, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, D.C. for further development. The veteran's representatives asserts that the issue of service connection for post-traumatic stress disorder (PTSD) is on appeal; however, that issue was denied by the Board in an August 2002 decision. This matter is referred to the RO for all indicated action. A private physician stated in July 2004 that the veteran was totally disabled and could not work as a result of his service-connected left thigh hip abductor strain with osteoarthritis. Therefore, the matter of a total compensation rating based on individual unemployability is referred to the RO for all indicated action. The issue of service connection for a left knee condition as secondary to the service-connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement is addressed in the REMAND portion of this document hereinbelow and is being remanded to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The veteran is not shown to have manifested complaints or finding of a right knee condition during his period of active service. 3. Subsequent to the period of active service, the veteran is shown to have sustained a torn cartilage in his right knee and undergone arthroscopy surgery in 1979. 4. The veteran's right knee condition is not shown to have been caused or aggravated by an injury or other event or incident of any period of active or inactive duty for training in connection with his National Guard service. 5. The currently demonstrated right knee replacement due to degenerative joint disease is not shown to have been caused or aggravated by the service-connected left hip disability. CONCLUSION OF LAW The veteran's right knee disability is not due to disease or injury that was incurred in or aggravated by service; nor may arthritis be presumed to have been incurred therein; nor is any proximately due to or the result of the service-connected left hip disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In November 2003, after the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. The veteran was afforded time to respond before the RO issued the February 2004 Statement of the Case (SOC). The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim and has been afforded ample opportunity to submit such information and evidence. The November 2003 letter also satisfies the statutory and regulatory requirement that VA notify a claimant, what evidence, if any, will be obtained by the claimant and what if any evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The November 2003 letter and January 2007 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. The letter advised the veteran that it was his responsibility to provide the RO with enough information about the records to enable the RO to request them from the person or agency having them, and advised the veteran that it was his responsibility to make sure the records were received by VA. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support a claim for service connection for bilateral knee condition and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that any arguable lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and he was afforded an opportunity to submit such information and/or evidence. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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 (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the November 2003 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), the RO advised the veteran of these elements in the January 2007 letter. The Board's decision below denies service connection for the claimed disability, so no degree of disability or effective date will be assigned. There is accordingly no possibility of prejudice to the veteran under the notice requirements of Dingess. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. The Board notes that in a March 2007 statement the veteran stated that there were treatment records at VA; however, the Board finds that it is not necessary to remand again for those records since medical records were already requested in January 2007. The Board notes that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, the veteran was afforded a VA examination in February 2007. The veteran withdrew his request for a formal Decision Review Officer hearing and instead had an informal conference at the RO in May 2004. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for service connection for right knee condition. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). After a careful review of the veteran's service medical records the Board finds that he did not sustain a right knee injury during his period of active service. After the period of active service, the veteran is shown to sustain a torn cartilage of his right knee and it was subsequently repaired in 1979. An examination performed for the purpose of enlistment in the National Guard in September 1984 noted that he had torn cartilage in the right knee that was repaired in 1979. A March 1993 National Guard examination report showed that he had had a right knee arthroscopy in 1987. In March 2001, the veteran had a right knee arthroscopy with a partial medial menisectomy and debridement of articular cartilage, medial femoral condoyle. In November 2002, he underwent a right knee arthroplasty due to degenerative joint disease. It was noted at that time that the veteran had a long history of right knee pain. In November 2003, the veteran underwent a left knee arthroplasty due degenerative joint disease. A May 2004 private physician's note stated that the veteran had previous pain in both knees. In submitted statements, the veteran related the pain in his right knee to his in-service job as a military tank operator. A July 2004 private physician's note stated that the veteran had pain in his left knee following a total knee arthroplasty. At a February 2007 VA examination, the examiner noted that the claims file was reviewed. The right knee was reported to have been asymptomatic until months after the left knee replacement in 2000, and the veteran strongly expressed the opinion that the right knee problems were secondary to the abnormal gait caused by the left knee. The right knee was replaced in 2005. The pain in his right knee had improved since the replacement, but occurred after lengthy walks. The VA examiner noted that a notation on a September 1984 report indicated that the veteran had had a repair of torn cartilage in the right knee in 1979 without subsequent symptoms. The VA examiner stated the veteran problems began in the left knee without symptoms on the right side at the time of the left knee replacement and that the right-sided symptoms only developed secondary to the left-sided gait abnormalities. The VA examiner opined that, given the lack of any symptoms in the right knee until stress subsequent to surgery on the left knee, the veteran's right knee condition was due to his left knee disorder and was less likely than not related to or caused by the apparently successful torn cartilage repair in 1979. The Board notes that findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes that a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Elkins v. Brown, 5 Vet. App. 474, 478 (1993). In addition, a medical evaluation that is merely a recitation of veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995); Reonal and LeShore, supra. The Board notes that a May 2004 private physician note opined that it did appear by history that there was a relationship with his conditions and his service in the military. However, this statement clearly was not based on a review of the veteran's claims file and was rather general in nature due to the examiner reliance of information provided by the veteran that favored his claim. On the other hand, the VA examiner based his opinion on the findings of a physical examination that included an interview with the veteran and a careful review of the claims file. Therefore, the Board finds the VA medical opinion to be the most probative in showing that the claimed right knee condition was not caused or other aggravated by an injury sustained during active service or any period of active or inactive duty for training while performing National Guard duty. The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Finally, the Board notes that the veteran had active service from October 1969 to October 1971 and verified active duty for training (ACDUTRA) from June 1991 to July 1991 as member of the National Guard. ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22). Service connection may be granted for injury or disease incurred in or aggravated by ACDUTRA. Inactive Duty Training (INACDUTRA) is defined as other than full-time training performed by the Reserve. 38 U.S.C.A. § 101(23). Service connection may be granted for injuries incurred in or aggravated by INACDUTRA, but not for disease. The Board notes that the 1979 right knee injury did not occur during the veteran's period of active service. In addition, the February 2007 VA examiner noted that the 1979 cartilage repair was successful and that there were no other subsequent symptoms during the veteran's periods of service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (emphasis added). The veteran's Form 88 of September 1984 noted a repair of torn cartilage in the right knee in 1979 without subsequent symptoms. The veteran's service medical records contain no medical evidence to show that the knee condition was aggravated by any period of active or inactive duty for training. The veteran's representative asserts that the right knee condition was secondary to his service-connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement and cites an August 2004 private physician's statement. The Board notes that service connection may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, a careful review of the private physician's statement shows that the physician did not state that his right knee condition was related to his service-connected left hip disorder instead it was stated that the veteran had pain following the left knee arthroplasty. Therefore, there currently is no medical evidence of a nexus between the veteran's right knee condition and his service-connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement. Therefore, given the facts above the Board finds that service connection for a right knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for a right knee disorder is denied. REMAND The veteran asserts that his left knee condition is secondary to his service-connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement. The February 2007 VA examination did not address this question. Therefore, the veteran should be afforded a VA examination to ascertain whether he his left knee disorder is secondary to his service-connected left total hip disability. The veteran is hereby advised that failure to report to the scheduled examination(s) may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the veteran and death of an immediate family member. To ensure that all due process requirements are met the RO should also give the veteran opportunity to present any additional information and/or evidence pertinent to the claims on appeal that is not already of record. The RO's notice letter should explain that the veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all evidence in his possession that is not already of record, and ensure that its notice to the veteran meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). In addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this remaining matter is hereby REMANDED to the RO for the following actions: 1. The RO should take appropriate steps to contact the veteran by letter and request that the veteran provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. The veteran also should be informed that he may submit evidence to support his claim. The RO's letter should invite the veteran to furnish all evidence in his possession, and identify what evidence is ultimately his responsibility to obtain. The RO should ensure that its letter meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, cited to above, as appropriate. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The veteran should be scheduled for VA examinations to ascertain the nature and likely etiology of the claimed left knee condition. The entire claims file must be made available to the examiner, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on his/her review of the case, the examiner should opine as to whether the veteran has current left knee disability that is at least as likely as not caused or aggravated by the service-connected left hip disability. The VA examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 4. To help avoid future remand, RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue of service connection for left knee condition secondary to his service- connected left thigh hip abductor strain with osteoarthritis, status post left total hip replacement should be reviewed in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 41 (1992). This REMAND 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. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs