Citation Nr: 1016591 Decision Date: 05/04/10 Archive Date: 05/13/10 DOCKET NO. 08-01 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected residuals of cold weather injury to the feet and hands and residuals of a fracture to the right tibia. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected residuals of cold weather injury to the feet and hands and residuals of a fracture to the right tibia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. These matters come before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for bilateral knee and hip conditions. Jurisdiction over the Veteran's claim was subsequently transferred to the RO in Winston-Salem, North Carolina. In his January 2008 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). In May 2008, he withdrew his hearing request. In July 2009, the Board remanded these matters for further development. The issue of entitlement to service connection for a sleep disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In July 2009, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral knee disability is not the result of an in-service disease or injury, and was not caused or aggravated by a service-connected disability. 2. The Veteran's bilateral hip disability is not the result of an in-service disease or injury, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability are not met, to include as secondary to a service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.310 (2009). 2. The criteria for service connection for a bilateral hip disability are not met, to include as secondary to a service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Under the VCAA, VA 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in May 2005, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for bilateral knee and hip disabilities. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the May 2005 letter complied with this requirement. The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in a September 2006 letter. The timing deficiency with regard to this letter was cured by readjudication of the claim in a December 2007 statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran was not notified of the evidence needed to substantiate a claim for service connection on a secondary basis. However, he received such notice in the December 2007 statement of the case. Such a post-decisional document could not serve to provide legally compliant VCAA notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). It should, however, have served to put the Veteran on notice as to what was required. He had years after the notice to submit additional evidence and argument. Thus, the Veteran was not prejudiced by this error. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As explained above, no such showing of prejudice has been made in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified post-service VA treatment records and private medical records. In addition, the Veteran was afforded a VA examination for bilateral knee and hip disabilities. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service- connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Because the Board finds that there is no evidence that a service-connected disability caused or aggravated the Veteran's bilateral knee and hip disabilities, it is not necessary to determine which version of the regulation is applicable. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's medical records reveal that he has been diagnosed as having various knee and hip disabilities. For example, a November 2008 VA primary care treatment note indicated a diagnosis of degenerative joint disease of the hip and knees and an October 2009 VA examination report indicated diagnoses of a bilateral knee strain and a bilateral hip strain. A March 1962 VA medical treatment record indicates that the Veteran had a bayonet wound to the left knee in 1951. The Veteran has also reported on numerous occasions that he was injured while serving in Korea when he was knocked off a tank by enemy fire, causing him to hit a tree and fall to the ground. The Veteran's service personnel records reveal that he served as a tank commander/crewman and that he participated in operations against enemy forces in Central and South Korea from August 1951 to July 1952. Also, in a November 2004 letter, a fellow serviceman stated that the Veteran had been knocked off a tank due to incoming enemy fire while serving in Korea. Where a Veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the Veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA shall accept the Veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists. In such a case a factual presumption arises that the alleged injury or disease is service connected. 38 C.F.R. § 3.304; Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). Competent evidence of a current disability and of a nexus between service and a current disability is still required notwithstanding the provisions of 38 U.S.C.A. § 1154(b). Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). As the Veteran's testimony is consistent with the circumstances of his service and has been corroborated by a fellow serviceman, the in-service injury due to a fall from a tank is conceded. Thus, there is evidence of current bilateral knee and hip disabilities and in-service knee and hip injuries. There is no evidence of any complaints of or treatment for knee or hip symptoms in the Veteran's service treatment records and his December 1953 separation examination was normal. He has not reported a continuity of knee or hip symptomatology and the first clinical evidence of a bilateral knee disability is a June 1996 VA X-ray report which revealed moderately advanced degenerative changes with narrowed medial joint spaces. The first clinical evidence of a right hip disability is a December 1997 VA primary care treatment note which indicates that the Veteran reported a 6 month history of right hip pain and that he was diagnosed as having degenerative joint disease. A December 1997 VA nursing clinic note reveals that the Veteran reported a 1 year history of right hip pain. Also, the first clinical evidence of a left hip disability is a March 2007 VA orthopedic consultation note which reveals that the Veteran reported left hip pain. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's bilateral knee or hip disabilities were present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The March 2007 VA orthopedic consultation note includes an opinion that if the Veteran sustained injuries to his knees and hips by being thrown off a tank in service, there was a possibility that the traumatic injuries could have resulted in the development of progressive degenerative joint disease involving multiple joints. No further explanation or reasoning was provided. The October 2009 VA examination report includes an opinion by a certified family nurse practitioner that it was not likely ("less likely than not") that the Veteran's hip and knee symptoms were the result of his fall from a tank in Korea. This opinion was based on the fact that the Veteran reported that after the in-service fall he received care from a corpsman and returned to duty without any other treatment during his entire military career. There was no evidence of any significant joint injuries during active duty and the Veteran was employed for many years after service in a field that resulted in significant strain in weight bearing joints. His type of employment and obesity were likely ("more likely than not") the cause of his bilateral knee and hip strains. The soft tissue injury that the Veteran sustained in Korea did not limit his activities during service or at any time until the mid 1990s. A February 2010 addendum to the October 2009 VA examination report reveals that a VA physician reviewed the Veteran's medical records (including his claims file) and the opinion provided in the October 2009 VA examination report. The physician concurred with the October 2009 opinion and opined that the Veteran's knee and hip arthritis were not likely ("less likely as not") to be caused by his injury while in Korea. This opinion was based on the Veteran's report during the October 2009 VA examination that he was only bruised after the in-service injury and did not have any fractures. He appeared not to have sustained any dislocation, fracture, or ligament disruption, did not receive any further in- service medical treatment for his injuries, he was released from service without any documentation of further musculoskeletal problems or treatment, and there was no report of any injury or disability at discharge. The physician who provided the February 2010 opinion further explained that the Veteran proceeded to work as an iron/steel worker for decades after service and his medical records did not reveal any joint disabilities until decades after service in the 1990s. Furthermore, a review of medical literature revealed that the pattern of post-traumatic arthritis usually follows a significant injury to a joint, especially a fracture or dislocation, and becomes evident within 5-10 years. The Veteran's history of knee and hip symptoms was not the normal pattern for post-traumatic arthritis development. Although the physician who conducted the March 2007 VA orthopedic examination opined that there was a possibility that the Veteran's in-service traumatic injuries could have resulted in the development of progressive degenerative joint disease involving multiple joints, the opinion is of little, if any, probative weight because it is unaccompanied by any reasoning or explanation and is equivocal. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Hood v. Shinseki, 23 Vet. App. 295, 296 (2009); Perman v. Brown, 5 Vet. App. 237, 241 (1993) (speculative or equivocal medical opinions may be considered "non-evidence" and have no probative value); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The value of the October 2009 opinion is somewhat limited by the fact that it is unclear as to whether the examiner reviewed the Veteran's private medical records concerning his knee and hip disabilities. The October 2009 VA examination report indicates that the claims file was reviewed. However, there is a notation that private medical records were not reviewed. Nevertheless, the bases for the opinion, that the Veteran received no further treatment for his injuries in service, that he did not report any knee or hip symptoms until decades after service, and that he was employed for many years after service in a physically demanding occupation, are correct. The opinion is therefore of some probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The physician who provided the February 2010 opinion explained the reasons for his opinion, they were based upon a review of the claims file, and they are consistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Id. The Veteran has expressed his belief that the bilateral knee and hip disabilities are secondary to his service-connected residuals of cold injury to the feet and hands and residuals of a fracture to the right tibia. However, there is no competent evidence of a relationship between his current knee and hip disabilities and any service-connected disability. As a lay person, the Veteran lacks the expertise to say that his knee or hip disabilities were caused by the service connected disabilities, as opposed to some other cause. It would require medical expertise to evaluate the knee and hip disabilities, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2009). Although the Veteran has received treatment by medical professionals for bilateral knee and hip disabilities, none has attributed these disabilities to the service-connected hand, feet, or right leg disabilities. Thus, the preponderance of the evidence reflects that the Veteran did not have knee or hip arthritis in service, such diseases did not manifest until more than a year after his January 1954 separation from service, and his current knee and hip disabilities are not related to service. If a chronic disease, such as arthritis, is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). There must, however, be sufficient observations in service to identify the disease entity. Id. As discussed above, there is no evidence showing knee or hip arthritis in service. Hence, service connection cannot be granted on that basis. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for bilateral knee and hip disabilities must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a bilateral hip disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs