Citation Nr: 1125700 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 09-22 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability, claimed as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2010, the Veteran testified before a Veterans Law Judge seated at the RO. A written transcript of this hearing has been added to the claims file. In January 2011, this issue was remanded by the Board for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's representative raised a new issue of an increased rating for her back disability-the Board had denied this issue in its January 2011 decision. This new claim for an increased rating is referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Competent evidence has not been presented of a nexus between a current right knee disability and a disease or injury incurred during active military service. Such a disability also did not manifest to a compensable degree within a year of service separation, and is not due to, the result of, nor aggravated by a service-connected disability. CONCLUSION OF LAW Entitlement to service connection for a right knee disability, to include as secondary to a service-connected low back disability, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of her claim, has notified her of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist her. In October 2007 and February 2011 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the October 2007 letter provided her with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the December 2007 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. She has also been afforded a VA medical examination in March 2011. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In December 2010, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board also notes that the Veteran submitted new evidence directly to the Board in April 2011, subsequent to the most recent statement of the case or supplemental statement of the case, without a signed waiver of agency of original jurisdiction review of this evidence. See 38 C.F.R. § 20.1304. On review of this evidence, however, the Board observes that it merely confirms degenerative changes and osteoarthritis of the right knee. As will be discussed in greater detail below, the Board concedes a current right knee disability in the present case. Where evidence of a current disorder is already of record, additional evidence of the same is cumulative and redundant, and need not be remanded by the Board for initial consideration by the agency of original jurisdiction. See Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010). Remand of this evidence for consideration by the RO would only needlessly delay adjudication of the Veteran's claim with little probability of any benefit resulting therein. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist her, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of her claim at this time is warranted. The Veteran seeks service connection for a right knee disability, to include as secondary to her service-connected low back disability, post-operative residuals of a laminectomy, with radiculopathy, of the lumbosacral spine. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may also be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. As an initial matter, the Board must consider the possibility of direct service connection, whether or not this theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). The Veteran's service treatment records are negative for any diagnosis of or treatment for any right knee disability during military service. Additionally, the Veteran does not contend onset of a right knee during military service, or within a year thereafter. In the absence of any competent medical evidence or contentions by the Veteran suggesting onset of a right knee disability during military service or within a year thereafter, service connection for a right knee disability is not warranted on a direct basis. Rather, the Veteran's primary contention is and has been that her service-connected low back disability has caused or aggravated a right knee disability. Both private and VA medical records confirm a current right knee disability, diagnosed as degenerative joint disease of the right knee, with osteopenia, suprapatellar joint effusion, and vascular calcification. As this current diagnosis has been verified by X-ray and is reflected within both the private and VA medical evidence, a current right knee disability is conceded by the Board. The question thus becomes whether such a disability is due to or is caused or aggravated by the Veteran's service-connected low back disability. The Board has reviewed all the evidence in the Veteran's claims file, which reflects both private and VA treatment. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his or her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the issue on appeal. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In support of her claim, the Veteran submitted the August 2009 written statement of S.M.S., M.D., one of her treating physicians. In his statement, Dr. S. wrote that according to the Veteran, she experienced increased pain of the left lower extremity following her low back surgery, and as a result, shifted more of her weight onto her right lower extremity. Thus, in the Veteran's opinion, her knee problems were the result of her low back disability. Dr. S. stated that, in his opinion, "the difficulty you are now having with your knees, in all likelihood, makes your back difficulty worse for you and that this would not have been the case, had you not had your initial back injury." Pursuant to the Board's January 2011 remand order, the Veteran was afforded a VA orthopedic examination in March 2011. The claims file was reviewed by the examiner, a VA physician, in conjunction with the examination. The Veteran reported pain of the right knee, increasing with activity, with onset in approximately 2000. She reported a history of surgery of the left knee, but none on the right. After physically examining the Veteran and taking X-rays of the right knee, degenerative joint disease of the right knee, with osteopenia, joint effusion, and vascular calcification, was diagnosed. Regarding the etiology of this disability, the examiner stated it was less likely than not that this right knee disability was caused by or was secondary to her service-connected low back disability. Rather, the examiner stated the Veteran's degenerative joint disease was more likely age-related, and noted that she had bilateral degenerative joint disease of the knees, suggesting the right knee was not uniquely adversely affected, as compared to the left knee, by her service-connected low back disability. At her December 2010 hearing, the Veteran testified that as a result of her service-connected low back disability, she has favored her right leg for many years, resulting in additional strain and stress on this extremity. This has resulted in a right knee disability, according to her testimony. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a right knee disability. Considering first entitlement to service connection on a direct basis, the evidence does not suggest onset of a right knee disability during military service, or within a year thereafter. Her service treatment records are negative for any diagnosis of or treatment for a right knee disability, and by her own admission, she first began experiencing symptoms of the right knee in approximately 2000, many years after service. The Veteran does not contend, and the evidence does not suggest, onset of a right knee disability during military service or within a year thereafter, and service connection on a direct basis for a right knee disability is therefore denied. Considering next entitlement to service connection for a right knee disability on a secondary basis, the Board similarly finds the preponderance of the evidence to be against such a claim. In so deciding, the Board has considered both the August 2009 written statement from Dr. S., as well as the March 2011 VA examination report. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Considering first the August 2009 written statement from Dr. S.M.S., the Board notes that this statement begins by merely reporting the Veteran's own contentions of a nexus between her right knee disability and her service-connected low back disability. Addressing the Veteran, the examiner wrote "[y]ou, therefore, believe your knee problems have been contributed to by your back problems." In merely repeating the Veteran's contentions, the examiner does not provide competent evidence. "Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence.'" Leshore v. Brown, 8 Vet. App. 406, 410 (1995). Therefore, the Board attaches to these statements little probative weight, and considers them the equivalent of the Veteran's own lay testimony, which will be discussed in greater detail below. The private examiner then goes on to state that, in his opinion, "the difficulty you are now having with your knees, in all likelihood, makes your back difficulty worse for you and that this would not have been the case, had you not had your initial back injury." In this statement, Dr. S. does not suggest the Veteran's service-connected low back disability caused or aggravated a right knee disability; rather, he suggests the opposite, that the Veteran's bilateral knee disabilities aggravate her service-connected low back disability. Thus, this August 2009 statement is of limited probative value to the Board, as it does not directly address the issue of whether the Veteran's service-connected low back disability caused or aggravated her right knee disability. By contrast, the March 2011 VA examination report and opinion was rendered by a competent medical expert, a VA physician, in light of both full review of the Veteran's medical history, as well as physical examination of the Veteran herself. After diagnosing degenerative joint disease of the right knee, with osteopenia, joint effusion, and vascular calcification, the VA examiner noted that the Veteran's right knee degeneration was essentially similar to her left knee, suggesting this disability was age-related, and was not secondary to her service-connected low back disability. The Board finds this opinion, based on a full review of the record and accompanied by a competent medical rationale, to be more probative of the issue on appeal. Therefore, service connection for a right knee disability must be denied, as the preponderance of the competent evidence is against a finding that the Veteran's current right knee disability was either caused or aggravated by her service-connected low back disability. As discussed already, the Veteran has alleged her current right knee disability is caused or aggravated by her service-connected low back disability. The Board finds her to be a credible historian; nevertheless, as a layperson, the Veteran is not capable of making medical conclusions. Thus, her statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Degenerative joint disease of the right knee, however, is a complex orthopedic disorder which requires specialized training and evaluation for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for a right knee disability, as such a disability was not incurred during military service or manifested to a compensable degree within a year thereafter. Additionally, such a disability has not been shown to be caused or aggravated by a service-connected disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected low back disability, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs