Citation Nr: 1228792 Decision Date: 08/22/12 Archive Date: 08/30/12 DOCKET NO. 04-19 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral knee disorder, to include as secondary to service-connected degenerative joint disease with ankylosis of lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from October 1980 through March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefit sought. The Board has remanded the case for different reasons in August 2005, October 2008, March 2010 and October 2010. In December 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received shortly thereafter, and in February 2012, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In a signed statement, dated in March 2012, the Veteran responded that he had no further evidence or argument to present and in April 2012 The American Legion offered written argument in support of the appeal. Accordingly, the Board will proceed with the consideration of his case. As noted in the October 2010 remand, the issues of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) and service connection for sleep apnea have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Since that October 2010 remand, it does not appear that the AOJ has adjudicated these claims and thus the Board only has jurisdiction to again refer them to the AOJ for appropriate action. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the competent evidence is against a finding that any chronic bilateral knee disorder is related to service or service-connected disability, or that arthritis was manifested to a compensable degree within a year of separation from active duty. CONCLUSION OF LAW A chronic bilateral knee disorder, was not incurred in or aggravated during military service, and may not be presumed to have been so incurred; nor is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove the claim. In any event, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently vacated the previous decision of the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). The VCAA duty to notify was satisfied generally by way of letters sent to the appellant in between November 2002 and October 2010, which in combination fully addressed the notice elements. The RO informed the Veteran of the specific criteria to substantiate his claim for service connection. These letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The RO has also provided adequate notice of how effective dates are assigned and the claim was readjudicated most recently in an April 2011 supplemental statement of the case. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records. The Board notes that the Veteran was afforded VA examinations regarding his claim. VA examined the medical history of the claimed conditions for compensation purposes addressing these claim. Findings from the examination report are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits of the Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition, if a Veteran served 90 days or more, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, then such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2011); Allen v. Brown, 7 Vet. App. 439 (1995). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining if the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either case, or if a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records show that the Veteran was seen at various times between September 1981 and October 1987 for complaints of low back pain. These records show no reference to any knee involvement associated with the low back symptoms. Service treatment records show no evidence of any condition referable to knee complaints or condition during service. A February 2002 VA spine examination report shows that the Veteran reported complaints of occasional low back pain that radiated into both legs down to the knees. That report contains no findings or diagnosis of any musculoskeletal condition of either knee. The August 2002 reports of a VA physical therapy consultation and a VA kinesiotherapy assessment show that the Veteran reported complaints of low back pain going down to the left leg and sometimes the right leg. During the physical therapy consultation, physical examination of the knee was normal. The Veteran had mild crepitation of the knees. That report contains an impression of low back pain with radiation to the left leg with negative EMG; overweight; and degenerative joint disease, knees. The report of a January 2003 VA general examination shows that the Veteran reported complaints of low back pain that radiated to the left and right legs to the knees and sometimes the ankle in the left leg. The Veteran reported that he feels that the left leg gives away sometimes. An addendum shows that X-ray examination of the knees was negative. The January 2003 report of VA X-ray examination of the knees shows findings of no evidence of fracture or dislocation; no appreciable hypertrophic degenerative change identified; and no gross knee joint fluid identified. The impression was that there was no significant bony abnormality identified. The report of an October 2005 VA examination shows that the Veteran reported complaints of knee pain beginning in December 2002 associated with a fall at that time. He reported that in December 2002 he felt a sharp pain in the back, shoulder and knees at the same time. X-rays of the knees showed no fractures or dislocations; joint spaces were preserved; the bone mineralization pattern was within normal limits; there was a fabella within the right knee; there was no gross soft tissue abnormality; and there was no suprapatellar joint effusion. The October 2005 VA examination report contains a diagnosis of chronic knee pain, bilaterally; normal examination, normal X-ray; insufficient evidence to warrant an acute diagnosis. The report contains an opinion that bilateral knee pain was at least as likely as not caused by or the result of service-connected lumbar spine condition. As rationale, the examiner stated that the Veteran had back pain severe enough to lose his balance and fall, resulting in the bilateral knee pain. In this regard, the examiner further commented that the nature of bilateral knee disorder was arthralgia of the bilateral knees; with normal X-ray study, normal examination; and insufficient evidence to warrant an acute diagnosis. The report of an April 2007 VA examination for joints shows that after examination the examiner found that the Veteran's problem was bilateral knee pain. Associated with that problem the report contains a diagnosis of (1) bilateral knee arthralgia, insufficient evidence to warrant an acute diagnosis, normal X-rays; and (2) obesity BMI (body mass index) of 39 (normal 24). The report of a May 2008 VA general examination shows that X-ray findings included minimal facet arthritis changes of the knees, without evidence of fractures or dislocations. The report contains a diagnosis of degenerative joint disease, bilateral knees. The examiner associated that diagnosis with the problem of bilateral knee pain. The report of a February 2009 examination shows that the examiner reviewed the claims file evidence and provided an addendum opinion as to the likelihood that the Veteran's bilateral knee disability was caused by or related to the Veteran's service-connected arthritis of the lumbar spine with bulging discs. The examiner opined that the bilateral knee disorder was not at least as likely as not caused by or related to the service-connected lumbar spine disability. The examiner commented that the rationale for the opinion was that there was no evidence in medical literature to support that arthritis of the knees is caused by or related to arthritis of the lumbar spine with bulging discs. An April 2010 VA examination report shows that the Veteran did not report for an examination and that the examiner was asked to review the medical records on file and provide an opinion. After discussing the evidence of record, the examiner stated that the Veteran did not report for examination and he was unable to determine if the Veteran's bilateral knee disability was proximately due to or the result of the service-connected lumbar spine disability. The report of a December 2010 VA examination shows that the Veteran reported that he injured his back and left knee during service when he fell to the ground working in a flight line. He reported that he was seen that day on sick call and was given pain medication and was on light duty for a month. He reported that the left knee was in constant pain, and that the right knee pain started a few years ago and was not associated with injury to the right knee. MRI (magnetic resonance imaging) of the left knee showed degenerative changes. The report contains diagnoses of (1) subchondral cyst of anterior trochlear margin, left knee causing chronic left knee pain, mild to moderate severity; degenerative joint disease; and (2) chronic right knee pain, mild; normal examination, normal X-ray of the knee; insufficient objective evidence to warrant an acute diagnosis. The report contains another set of diagnoses of (1) right knee normal, X-ray negative for degenerative joint disease; (2) left knee X-ray cyst present; (3) MRI left knee osteochondral lesion; minimal degenerative joint disease changes. The examiner opined that degenerative arthritis of both knees was less likely (less than 50/50 probability) etiologically related to the Veteran's fall in 2002 or to any other injury or illness incurred during service or to any altered gait that is attributable to the Veteran's service-connected lumbar spine disability. As rationale for that opinion, the examiner stated that degenerative disease changes in the knees are etiologically related to weight bearing hips and knees; that men are more likely to have degenerative disease changes after age 50; that there is a familial tendency to develop degenerative joint disease changes; and that obesity and repetitive joint strain are the risk factors in developing osteoarthritis; and repetitive knee bending and heavy lifting aggravates arthritis. In an August 2011 memorandum to The American Legion from Ann Marie Gordon, MD/MPH, a medical consultant to the Veteran's representative, Dr. Gordon discussed her review of the medical records with respect to the clinical history of the Veteran's claimed bilateral knee disorder. On that basis she provided a medical opinion with rationale as to its etiology and likely nexus of the claimed disorder with service or the service-connected lumbar spine disability. Dr. Gordon noted in conclusion that service connection is in effect for degenerative joint disease with ankylosis of the lumbar spine, and for left lumbar radiculopathy associated with the lumbar spine disability. She noted that it is well established that individuals with joint disease of the back have been known to compensate by making gradual changes in their stance and gait to facilitate ease of movement and to avoid pain; and that such changes can place undue stress on other joints, particularly the knee joints. She stated that the Veteran's lumbar spine disability resulted in functional limitations of standing, walking, and abnormal weight bearing. She noted that physical examination findings have noted that the Veteran favored his left leg due to pain and he needed a walking cane to ambulate, and that he had an altered and antalgic gait, and gait abnormality described as poor propulsion and limping. Dr. Gordon noted that the Veteran developed bilateral knee pain subsequent to his back condition, and that there was radiological evidence of an osteochondral lesion and degenerative joint disease in the left knee. Dr. Gordon stated that it is conceivable that by assuming an abnormal gait with concomitant adaptation of posture as a result of his low back problem, the Veteran transferred additional and abnormal pressures on other joints of the lower extremity, particularly the knees, and shifted the stress of weight bearing to the knee joint with resulting in significant overuse of that joint. Based on the foregoing, Dr. Gordon opined that it is at least as likely as not that the Veteran's service-connected low back condition contributed to the development of his knee condition. VA obtained a medical expert opinion from the Veterans Health Administration in January 2012. That opinion shows that a surgeon of the VA Health Care System reviewed the Veteran's medical records on file and commented on the likelihood that the Veteran's bilateral knee degenerative joint disease was aggravated by his service-connected lumbar spine disability. After review of the Veteran's medical records on file and literature searches on the material issue, that physician opined that it was "NOT at least as likely as not that diagnosed left or right knee degenerative joint disease was aggravated (i.e., permanently worsened) by his service-connected" lumbar spine disability. That opinion was based in part of the expert's finding that on review of the literature, he could find no link or association of spinal degenerative joint disease or bulging lumbar disc aggravating, progressing, accelerating, or permanently worsening degenerative joint disease of the knees. The expert reiterated that degenerative joint disease of the lumbar spine with bulging discs at any level was not recognized as an aggravating, progressing, accelerating, or permanently worsening contributor to left or right knee degenerative joint disease. In summary, the service treatment records on file show that during the Veteran's period of active service from October 1980 through March 1988, there was no indication of any left or right knee condition in service. During the December 2010 VA examination the Veteran indicated that he had injured his left knee in service at the same time as when he injured his back, and received treatment at that time. However, the service treatment records show no indication of any knee complaints or treatment in service. Nor are there any contemporaneous records of treatment or complaint after service prior to the early 2000s. There is no competent or credible medical evidence of any continuity of knee symptoms after service on which to base a finding of an etiological link between any current knee condition and an injury in service. The first clinical evidence of any knee condition is shown in the report of an August 2002 VA physical therapy consultation report. That provider concluded with an impression of degenerative joint disease of the knees, albeit there does not appear to be any imaging findings at that time to support the impression. There is no competent or credible evidence of any knee condition prior to 2002 to support a finding of a continuity of symptoms since discharge from service in 1988. Moreover, the Veteran has not generally asserted any such continuity of symptoms since service. In this regard, during the October 2005 VA examination, the Veteran reported that his knee pain began only in December 2002, and that this was associated with a fall at that time in 2002. At the October 2005 VA examination the Veteran attributed the claimed 2002 fall (and claimed knee injury and residuals) to his service-connected lumbar spine disability. However, to the extent the Veteran links any current left or right knee disorder to his service-connected lumbar spine disability, the preponderance of the competent medical evidence addressing this question is against a finding that any chronic right or left knee disorder was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995). Although the October 2005 VA examiner concluded it was at least as likely as not that bilateral knee pain resulted from the lumbar spine disability, he based that opinion merely on his conclusion that the low back pain was severe enough to cause a loss of balance. In other words the back condition could cause a fall, not that it is likely that it did cause a fall that caused a bilateral knee disability. Further, there is no contemporaneous record of treatment or complaint of such a fall or injury. Also, during the October 2005 VA examination the examiner diagnosed only arthralgia (pain) of the knees. He concluded, however, that there was insufficient evidence for a diagnosis. Thus, the entire opinion is attenuated to a great extent so as to be of little probative value on the question of the likelihood that a bilateral knee disability was caused or aggravated by a service-connected disability. Furthermore, the remainder of the VA examiners who provided an opinion on this question overwhelmingly opined that the Veteran's bilateral knee disorder was not at least as likely as not etiologically related to the Veteran's service-connected lumbar spine disability or to a fall caused by that low back disability. The reports of the February 2009 and December 2010 VA examinations, and the report of the January 2012 Veterans Health Administration expert opinion, all concluded in effect that it was not at least as likely as not that diagnosed left or right degenerative joint disease was aggravated by, or otherwise related to, the Veteran's service-connected lumbar spine disability. None of the VA examiners during the VA examinations discussed above linked a left or right knee disorder to a current lumbar spine disability or to service directly. No post-service treatment record contains an opinion or otherwise links any current knee condition to service or to a service-connected disability. In reaching its conclusion on this claim, the Board has weighed all of the evidence of record including the opinion offered by Dr. Gordon. The Board finds that the opinion from Dr. Gordon is less persuasive than the opinions provided by the VA examiners discussed above. In this regard the Board notes that the opinions of the VA examiners at the VA examinations in February 2009 and December 2010 were based in large part on examination of the Veteran, as opposed to Dr. Gordon's opinion, which is not shown to be based on examination. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (The 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 conclusions the expert reaches). Also, these VA examination opinions are consistent with the remainder of the clinical evidence, including the January 2012 opinion provided by the VHA expert, a staff surgeon, Division of Orthopedic Surgery within the VA Health Care System. That opinion considered all prior evidence on file including Dr. Gordon's August 2011 opinion. For these reasons the Board affords the opinions contained in the reports of the VA examinations in February 2009 and December 2010 more weight than that of Dr. Gordon in evaluating the claim. In the absence of a relative balance of medical evidence or probative lay evidence, linking the claimed bilateral disability to service or to service-connected disability, service connection is not warranted for the chronic bilateral knee condition. Stefl. In this case, there is no medical evidence linking the Veteran's diagnosed bilateral knee pathology to service or to any service-connected disability. Further, there is no evidence that arthritis of either knee became manifest to a degree of 10 percent or more within one year from date of termination of service. 38 C.F.R. §§ 3.307, 3.309(a). In reaching these determinations, the Board does not question the Veteran's sincerity or credibility that he fell and injured his left knee in service, or that he fell in 2002 and felt pain in the knees at that time. Nor does the Board question his sincerity in asserting that generally his bilateral knee disorder is proximately due to the lumbar spine disability. However, as a lay person he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2011) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Because the Veteran is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, the Board finds the opinions given by the VA examiners as discussed above and the VHA expert opinion, to be more probative than the Veteran's statements on any continuity of symptoms or other basis for entitlement to service connection. Thus, the Board finds that the preponderance of the evidence is against the claim. Therefore, based on the foregoing, service connection must be denied for bilateral knee disorder. ORDER Service connection for bilateral knee disorder, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs