Citation Nr: 1237688 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 05-24 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury, to include osteoarthritis. 2. Entitlement to service connection for a right knee disorder as secondary to residuals of a left knee injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. The issues now before the Board were previously remanded in April 2008, October 2009, and, most recently, in March 2011 for further evidentiary and procedural development. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the most-recent March 2011 remand was to achieve further development of the claims, namely to obtain additional medical records which may be probative to the Veteran's claims, and as well to afford the Veteran an additional examination and opinion. A review of the post-remand record shows that the Veteran was asked as part of letters dated in March 2011, April 2012, and August 2012 (the record demonstrates that the VA had trouble ascertaining a proper mailing address for the Veteran, but this was ultimately accomplished) to supply VA with medical records, especially pertaining to his undergoing left knee surgery in the late 1970's as well as those relating to a 1985 workers' compensation claim. The Veteran did not supply VA with any of these requested medical records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a veteran desires help with his claim he must cooperate with VA's efforts to assist him). Following the March 2011 remand, the Veteran was also afforded a VA examination in August 2012. Review of this examination report, as discussed more fully below, shows that it is adequate to enable the Board to fully and fairly adjudicate the Veteran's claims. Therefore, the Board here determines that compliance has now occurred with the Board's orders in the March 2011 remand, and that the Board may now proceed with adjudication of the claims. The Board also here notes that claims concerning entitlement to service connection for hearing loss, tinnitus, and post traumatic stress disorder (PTSD) were all remanded by the Board in April 2008 so that additional development of the evidence could be undertaken. The AMC subsequently granted service connection for these three claimed disabilities in September 2009. As such, these matters are no longer before the Board for appellate consideration. FINDINGS OF FACT 1. Arthritis of the left knee did not have its onset in active service or manifest to a compensable degree within one year after discharge from active service, and is not the result of a disease or injury incurred in active service. 2. The Veteran does not have a right knee disorder that is casually or etiologically related to his military service, or to a service-connected disability. CONCLUSIONS OF LAW 1. Residuals of a left knee injury, to include osteoarthritis, were not incurred or aggravated during active duty service, and may not be service connected on a presumptive basis. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. A right knee disorder was not incurred or aggravated during active duty service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). The 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in September 2003, before the AOJ's July 2004 adjudication of the claims. Specifically regarding VA's duty to notify, the notification to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. An April 2008 letter also informed the Veteran how VA determines disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this notice letter postdated the initial adjudication, no prejudice resulted as the claims were subsequently readjudicated without taint from the prior decision. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as a Statement of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to cure a timing defect). To this, the AMC provided the Veteran a SSOC in September 2009; however, this was returned as undeliverable. See October 2009 Board remand. Another copy of the SSOC was mailed to the Veteran in June 2010, at a different address, by a VA Remand and Rating Development Team, located in Huntington, West Virginia. Also, and most recently, the Veteran was provided a SSOC by the AMC in September 2012 which reported the results of its review of the issues on appeal. Regarding VA's duty to assist, the Veteran's service treatment records have been associated with the record. Also, a VA opinion with respect to the issues on appeal was obtained in August 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). The Board finds that the August 2012 VA opinion obtained in this case is sufficient, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. It considered all of the pertinent evidence of record, the statements of the appellant, and provides an explanation (i.e., rationale) for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). This participation includes his appearing at the above-mentioned August 2012 VA examination. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Laws and Regulations/Factual Background/Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, at 309. Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). While this appeal was pending, VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. See 71 Fed. Reg. 52,744 (September 7, 2006). The amended text states that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In a September 2012 SSOC, after the claim seeking service connection for a right knee disability was first adjudicated by the RO in July 2004, VA informed the Veteran of the evidence necessary to substantiate a secondary service connection claim, under 38 C.F.R. § 3.310, which has different requirements than direct service connection. However, the Board finds that the timing of this notice is harmless because the Veteran has had actual knowledge of the evidence necessary to substantiate his secondary service connection claim. See January 2008 and October 2012 Informal Hearing Presentations. This evidence establishes that the Veteran has had actual knowledge of the evidence necessary to establish a secondary service connection claim, which is evidence that a service-connected disability has a causal or aggravating relationship with a claimed disorder. The above-mentioned evidence also would lead a reasonable person to conclude that the Veteran was aware of what type of evidence was necessary to supply regarding secondary service connection claims. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he injured his left knee in a twisting injury while serving in Vietnam as a gunner. Specifically, he describes that his unit came under sniper fire somewhere in the Que Son Valley, Highway 9, sometime between July and October 1970 and that 50 caliber ammunition cans fell on his left leg. According to the Veteran, he sought evaluation of this injury from a medic, but declined treatment. Following service, he underwent surgery on his left knee in the late 1970s. More recently, he asserts that he has continued to experience pain associated with arthritis of the left knee. He also contends that he has developed arthritis in his right knee as a result of favoring this leg. The service treatment records are silent for any left knee injuries or complaints. However, VA was able to verify through the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Unit Records Research (CURR)) that the Veteran's unit was operating in the Quang Tin province during the period from July 1970 through October 1970 and that it received small arms fire on at least one occasion in October 1970. The Veteran's personnel records also show that his military occupational specialty (MOS) for this period was assistant machine gunner. Under these circumstances, the Veteran's statements alone are sufficient to establish a left knee injury in service. See 38 U.S.C.A. § 1154(b) (West 2002). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). As noted by the Board in its March 2011 remand, none of the competent evidence of record established that the Veteran's current left knee osteoarthritis was in any way related to his in-service injury. There was, however, evidence which tended to "indicate" that his osteoarthritis "may be associated" with military service, thereby triggering VA's duty to provide a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran's lay statements that he underwent surgery on the left knee less than a decade after the initial injury, with no evidence of an intercurrent injury, tended to suggest a possible etiological link. As such, the Board remanded the appeal to obtain an opinion regarding the likelihood that the Veteran's current left knee osteoarthritis (and any other current left knee disorder(s)) is, in some part, due to his in-service left knee twisting injury. The Board also, as noted in the INTRODUCTION section above, as part of its March 2011 remand, sought to provide the Veteran with an opportunity to supply VA with medical evidence pertaining to his 1970's surgery and his 1985 workers' compensation claim and medial meniscectomy. See April 2012 letter. The Veteran did not respond. Wood. The available medical evidence concerning the Veteran's knees is sparse. A June 1985 letter on file, from a private physician, Dr. W.I.H., shows that the Veteran had been under his care since April 1985 for a torn medial meniscus of the left knee. The Veteran was noted to have undergone a medial meniscetomy via arthroscopic in May 1985. The physician noted that the Veteran had last been seen in June 1985 with complaints of radiating pain. Physical therapy was recommended. An August 2003 VA psychiatric outpatient note shows that the Veteran complained of intermittent left knee pain. A February 2004 VA X-ray report shows that minimal degenerative arthritic changes of the left knee was diagnosed. An April 2004 VA primary care progress note shows a diagnosis of osteoarthritis of the knees, with the left knee being symptomatic. Review of VA's Compensation and Pension Record Interchange (CAPRI) system via "Virtual VA" shows that a January 2006 VA outpatient treatment record included a diagnosis of arthritis of the knee; the specific knee was not referenced. The record also noted the absence of swelling. Review of a August 2012 VA Disability Benefits Questionnaire (DBQ) examination report shows that the Veteran's claims folder was reviewed in conjunction with the examination. The examiner provided a diagnosis of left knee arthritis; a diagnosis concerning the right knee was not provided. In describing his review of the Veteran's claims folder, the examiner commented that the Veteran incurred an in-service fall, at which time he twisted his knee. This was followed post service by two operations, needed as a result of work-related injuries. The examiner added that the Veteran had no knee problems until he incurred work-related injuries. X-ray examination revealed left knee arthritis. After taking the Veteran's medical history, and examining him, the examiner opined that the Veteran's left knee arthritis was more likely a result of his [post service] work injuries and surgeries rather than his one [in-service] episode of a twisting knee injury over 40 years earlier. The examiner, in support of his proffered opinion, added that the Veteran's claims folder did not reveal any other in-service injury, and the in-service injury did not, contrary to his post-service left knee injuries, require surgery. As to a current disability of the left knee, a diagnosis of left knee arthritis was rendered on the August 2012 VA DBQ examination report. The examiner opined, however, that the Veteran's present diagnosis of arthritis of the left knee was not related to his active military service, to include to an in-service twisting injury. He added, as rationale for his opinion, as above noted, that the Veteran's claims folder did not reveal any other in-service injury, and the in-service injury did not, contrary to his post-service left knee injuries, require surgery. In this case, the only evidence linking the Veteran's currently diagnosed left knee arthritis to his service is his own lay contention. Lay 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) (lay witness capable of diagnosing dislocated shoulder). Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Like the varicose veins in Barr or dislocated shoulder in Jandreau, knee problems are, generally, capable of lay description by the person experiencing them. However, a veteran's statements as to subjective symptomatology alone, such as complaints of pain, without medical evidence of an underlying impairment capable of causing the symptoms alleged, is generally not sufficient evidence of the existence of a current disability for VA service connection purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001). In this case, however, there is a diagnosis of a current disability - left knee arthritis -- and a different diagnosis pertaining to the left knee twisting injury determined to have been incurred in-service. However, whether the left knee twisting injury experienced many years ago was as likely to have caused or resulted in left knee arthritis today as some other cause or etiology for currently diagnosed left knee disorder is a medical matter requiring medical evidence for its resolution. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade). Moreover, even if the Veteran's contentions could be read as claiming continuity of symptomatology of left knee problems since service, the medical evidence of record is neither credible nor persuasive to this point because the Veteran is first shown to have had left knee problems in 1985 following his incurring a torn left medial meniscus. While he was provided an opportunity to provide VA with information sufficient to enable VA to attempt to obtain medical records relating to knee surgery which allegedly occurred in the late 1970's, he did not. See Wood. Therefore, the Veteran's statements regarding etiology do not constitute competent evidence on which the Board can make a service connection determination. The medical evidence in this case relevant to the etiology of the current left knee arthritis -- specifically, the opinion rendered during the August 2012 VA DBQ examination -- reflects the current left knee arthritis is not related to the Veteran's active military service. There is no probative contrary evidence of record. Thus, the Board concludes that the preponderance of the evidence is against the claim for service connection for residuals of a left knee injury, to include osteoarthritis. As noted, service connection is not here assignable presumptively for the left knee arthritis, at it clearly has not been demonstrated to have been present within the requisite period of time. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for left knee injury residuals is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). As to the Veteran's claim seeking service connection for a right knee disorder, he has essentially argued that he suffers from a right knee disorder secondary to his, here determined to be, nonservice-connected left knee. As the Board mentioned in its March 2011 remand, the only evidence at that time of record pertaining to the Veteran's right knee, was part of an April 2004 VA Primary Care Note which showed a diagnosis of osteoarthritis of the knees, but failed to indicate what clinical evidence formed the basis for the diagnosis. The Veteran at that time was provided an opportunity to submit medical evidence demonstrating a current right knee disorder as well as evidence indicating a link to his left knee. He did not provide such information. Wood. Initially, the Board notes that there is no evidence that the Veteran is currently diagnosed with any chronic disability of the right knee. The Veteran has provided no competent medical evidence indicating he currently suffers from such a disability. While the April 2004 VA Primary Care Note notes complaints of knee pain, while not specifying to which knee, as noted, pain is not, in and of itself, a disability for the purposes of service connection. Sanchez-Benitez, 13 Vet. App. at 285, appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001). The Board also acknowledges that the Veteran, as a layperson, has no competence to give a medical opinion on the diagnosis a condition. Espiritu. Thus, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis of a condition. Davidson. Consequently, lay assertions of medical diagnosis cannot constitute evidence upon which to grant the claim for service connection. Lathan, 7 Vet. App. at 365. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the Veteran has no current disability of the right knee, service connection must be denied. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009); Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Also, of course, as the Veteran is not service connected for a left knee disability, being service connected for a right knee disorder secondary to a left knee disability, is not, as a matter of law, possible. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, the Board finds that there is no competent evidence of a current diagnosis of a chronic disorder of the right knee. The Veteran has produced no competent evidence or medical opinion in support of his claim that he suffers from such a disability, and all evidence included in the record weighs against granting the Veteran's claim of service connection for a right knee disorder. In reaching this decision on the claims for service connection, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs