Citation Nr: 1237123 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 08-25 761 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right knee disorder, including as secondary to the service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1966 to August 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board remanded the case to the RO in December 2010 and August 2011 for additional development of the record. The RO had complied with the remand directives. In a July 2012 rating decision, the RO granted service connection for a left knee disability. FINDING OF FACT The currently demonstrated right knee degenerative changes is shown as likely as not to be due to his service-connected left knee disability. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his right knee disability is proximately due to or the result of his service-connected left knee disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, supra (concerning varicose veins); see also Jandreau, supra (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). To the extent that the action taken hereinbelow is favorable to the Veteran; a full discussion of VCAA is required. Merits of the Claim Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2011); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2011); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Initially, the Board notes that the Veteran's service treatment records are negative for complaints or findings referable to a right knee disorder. He received treatment for left knee manifestations, a chronic right knee condition was not identified during service. Significantly, in his August 1968 report of medical history, the Veteran expressly denied having a "trick or locked knee." No knee injury was noted. The contemporaneous report of medical examination also noted normal lower extremities. An August 2004 treatment record showed some findings of tenderness in each knee and difficulty with walking and prolonged standing. In a July 2005 letter, a private physician noted that the Veteran had arthritic problems in both knees and opined that, because the service treatment records show instances where the Veteran had some complaints, discomfort and treatment for his knees during service, it was "plausible that this was an ongoing problem even at that early time." A September 2005 radiology report showed mild degenerative joint disease of the both knees. The Veteran underwent a VA examination in January 2006. The examiner performed an examination and offered an opinion as to only his left knee. In March 2006, the private physician submitted another statement in support of the Veteran's claim and opined that the Veteran entered service with a left knee injury that worsened due to the military exercising and physical training. The physician further opined that, because the Veteran had problems with his left knee and began favoring his leg, this caused some arthritic problems in the right knee as well. The Veteran underwent a VA examination in September 2011 when a diagnosis of chronic left knee strain was noted. No diagnosis was made as to the claimed right knee conditions. The examination showed flexion of the right knee to 115 degrees with no objective evidence of painful motion or limitation of extension. Anterior and posterior instability testing was 1+ for the right knee. The VA examiner opined that the Veteran's left knee disorder was likely due to his period of service. In a July 2012 rating decision, the RO granted service connection for a left knee disorder. An addendum to the VA examination was filed in July 2012. The examiner opined that the claimed right knee disorder was less likely than not incurred in or caused by service. As a rationale, the examiner stated that "while this Veteran [did] have significant degenerative joint disease in his right knee, a careful review of his service medical record [did] not show that there were any visits, x-rays, or discussions regarding right knee problems during his two years of military service." The examiner did not offer an opinion as to whether the Veteran's right knee disorder was secondary to his left knee disorder. In resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence to be in relative equipoise in showing that the claimed right knee arthritis as likely as not is caused by the service-connected left knee disability. . The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In resolving all reasonable doubt in favor of the Veteran, secondary service connection for a right knee disorder is warranted. ORDER Service connection for a right knee disorder, to include as secondary to a service-connected left knee disability, is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs