Citation Nr: 0815015 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-07 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for left knee disorder, to include as secondary to service-connected disability of left foot plantar fascia injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1983 to November 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In August 2006, a Travel Board hearing was held before a Veterans Law Judge no longer employed by the Board. A transcript of this hearing is of record. In October 2006 and November 2007, this case was remanded for additional development. The case has been reassigned, and in March 2008 a Travel Board hearing was held before the undersigned. A transcript of this hearing is also of record. FINDING OF FACT The veteran's current left knee disability is not shown to be related to service or an injury therein; the preponderance of the evidence is against a finding that it was caused by or aggravated by his service-connected disability of left foot plantar fascia injury CONCLUSION OF LAW Service connection for left knee disability, to include as secondary to a service-connected disability of left foot plantar fascia injury, is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). July 2002, February 2005, December 2006, and May 2007 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. He has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including timing) that may have occurred earlier in the process. In addition, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the December 2006 letter informed the veteran of disability rating and effective date criteria. The claim was readjudicated after all critical notice was issued, and development sought by the Board was completed. See January 2006 and July 2007 Supplemental Statements of the Case. The veteran is not prejudiced by this process, and it is not alleged otherwise. The veteran's service medical records (SMRs) are associated with his claims file, and pertinent treatment records have been secured. The RO arranged for VA examinations in September 2002 and May 2007. The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background An undated SMR shows that the veteran complained of four weeks of left knee pain during his ninth week of training (this would place him at or around the last week of January 1984); unspecified pain was diagnosed. In July 1984, the veteran injured his left foot and heel when it was caught in the turret of a tank. SMRs, including his July 1985 medical board physical examination report and report of medical history, are silent for any complaints, treatment, findings, or diagnosis of left knee pain or injury subsequent to the July 1984 left foot injury. July 1985 to April 1996 private treatment records from Health South and Dr. S.G. are silent for any complaints, findings, treatment, or diagnosis related to a left knee disability. July 1991 to April 1992 private treatment records from Dr. K are silent for any complaints, findings, treatment, or diagnosis related to a left knee disability. January 1995 to September 1998 VA outpatient treatment records are silent for any complaints, findings, treatment, or diagnosis related to a left knee disability. February 2001 to December 2006 VA outpatient treatment records show that the veteran first complained of left knee pain in January 2002; on X-ray, marked narrowing of the left knee was shown. In February 2002, chondromalacia patella was diagnosed. The veteran complained of left knee pain again in June 2003. X-ray findings were essentially normal; chondromalacia patella was diagnosed. On September 2002 VA examination, the veteran reported that he had injured his right knee four years prior and that one year later left knee pain developed. He also reported that a physician had told him that the tendinitis in his left ankle had set in his left knee. Upon physical examination, the left knee had full active motion without effusion with pain to palpation around the patellofemoral articulations, and pain along the patellar tendon insertion into the patella. X-rays showed mild degenerative change manifested primarily as peaking of the tibial spines. The examiner opined, "Based upon the information provided, there is no evidence that tendinitis from the left ankle has 'spread' up into the left knee. With reasonable medical probability, it is most likely that the veteran's left knee symptoms are due to compensatory changes from his right knee injury. He manifests patellofemoral syndrome in the left knee which is probably related to overuse. Had his tendinitis been related to his left ankle, one would anticipate he would work his left knee less rather than more." On May 2007 VA examination, the veteran reported having a minor left knee strain in early 1984. In July 1984, he injured his left foot and was non-weightbearing on that leg for approximately six months. When he returned to partial weightbearing, he had intermittent left knee pain. He reported having intermittent left knee pain in the years following, with one or two episodes each year of extreme pain. When he returned to full weightbearing, he had intermittent left knee pain but was able to return to almost pre-foot injury levels of activities. X-ray findings showed no significant osseous, joint or soft tissue abnormalities. Upon physical examination, the veteran had passive and active ranges of motion against resistance from 0 to 135 degrees. There was some patellar crepitus noted, but no effusion. Patellofemoral syndrome was diagnosed. The examiner opined that his current left knee disability was not related to his pre-July 1984 injury, and that it was more likely than not that it was not related to the July 1984 injury. He reasoned that the veteran's left knee actually had been very functional over the years. At his March 2008 Travel Board hearing, the veteran testified that when he injured his left foot and ankle in service, his knee was also bent and twisted; however, at the time, he was more focused on the foot injury and did not complain about his left knee pain. He further noted that his left knee pain predated his right knee injury. C. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The evidence shows the veteran has a current left knee disability; patellofemoral syndrome has been diagnosed. While the evidence of record shows that the veteran complained of mild knee strain during service in early 1984, there are no subsequent complaints of left knee pain, including during his July 1985 medical board physical examination. There is also no evidence of a nexus between his in-service injury and current disability; the only competent (medical) evidence of record in this matter, the May 2007 VA examination, opined that the veteran's current knee disability was not related to his pre-July knee injury. The examiner noted that the veteran's left knee had been functional over the years, with only mild intermittent pain over the past couple of years. There is also no evidence of a nexus between the veteran's current left knee disability and his service-connected disability of left plantar fascia injury. The competent (medical) evidence of record in this matter consists of the September 2002 and May 2007 VA examinations. On September 2002 VA examination, it was opined that tendinitis in the left ankle had not spread to the veteran's left knee; therefore, the current left knee disability was unrelated to his service-connected left foot plantar fascia injury. The examiner reasoned that the veteran's left knee disability was related to a postservice right knee injury, as the symptoms he exhibited in the left knee were related to overuse. The examiner observed that had his left knee disability been related to his left foot and ankle injury, he would not have been able to use his left knee as frequently as he did. Similarly, on May 2007 VA examination, it was opined that the veteran's current left knee disability was not related to the July 1984 injury in service; the examiner noted that the veteran's left knee had actually been very functional with only mild intermittent trouble with his knees over the past couple of years. Although the veteran testified at his March 2008 Travel Board hearing that he experienced left knee pain soon after his July 1984 in-service left foot and ankle injury, the history he has reported to his VA examiners has been somewhat inconsistent. In September 2002, he reported the onset of his left knee pain to be one year after his postservice right knee injury. In May 2007, he described it as intermittent (not chronic) pain over many years. The medical evidence of record indicates that he did not complain of left knee pain until January 2002. Notably, a lengthy period of time between service and the first postservice clinical notation of complaints or symptoms associated with the disability at issue (here, almost 18 years) is of itself a factor of consideration against a finding that the current disability is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (in a claim alleging that a disability was aggravated by service). Finally, the veteran's own statements relating his current left knee disability to either his one-time, in-service complaint of mild left knee strain or his service-connected disability of left foot plantar fascia injury, are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The preponderance of the evidence is against a finding of a nexus between the veteran's current left knee disability and his in-service mild left knee strain or service-connected disability of left foot plantar fascia injury. Consequently, the preponderance of the evidence is against the veteran's claim. In such a situation, the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for left knee disability, to include as secondary to a service-connected disability of left foot plantar fascia injury, is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs