Citation Nr: 1237881 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 05-36 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a bilateral knee disorder. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to a bilateral knee disorder. 4. Entitlement to service connection for chronic headaches, to include as secondary to a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from February 1965 to February 1967. This case was remanded by the Board of Veterans' Appeals (Board) in May 2011 to the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska to obtain additional treatment reports and to obtain a VA evaluation with nexus opinion. Additional private treatment reports and a June 2011 VA evaluation report were added to the claims file as a result of the Board's remand. The issues on appeal were subsequently denied in a September 2012 Supplemental Statement of the Case, and they are again before the Board for adjudication. Consequently, there has been substantial compliance with the May 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in July 2007, and a transcript of the hearing is of record. FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claims for service connection for a bilateral knee disorder, a lumbar spine disorder, a cervical spine disorder, and chronic headaches; and he has otherwise been assisted in the development of his claims. 2. The June 2011 conclusion by a VA examiner that the Veteran's bilateral knee disorder is not causally related to service is competent, credible, and highly probative evidence. 3. The Veteran's bilateral knee disorder is not causally related to service. 4. The Veteran's lumbar spine disorder, cervical spine disorder, and chronic headaches are not causally related to service or to a service-connected disorder. CONCLUSIONS OF LAW 1. A bilateral knee disorder was not incurred in or aggravated by active duty; nor may degenerative disease it be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2012). 2. A lumbar spine disorder was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A cervical spine disorder was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. Chronic headaches were not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The Veteran does not have a lumbar spine disorder, a cervical spine disorder, or chronic headaches that are proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 5103A, 5107, 7104 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2005, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file after the letter. In compliance with the duty to notify, the Veteran was informed in a March 2006 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA knee evaluation was obtained in June 2011. 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). As noted below, the Board finds that the VA evaluation obtained in this case is adequate, as it includes a review of the claims file, examination of the Veteran's knees, and a nexus opinion with rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue of service connection for a bilateral knee disorder has been met. 38 C.F.R. § 3.159(c)(4). With respect to the other service connection issues decided herein, although no nexus opinion has been obtained in this case, none is needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. There is no medical evidence of a lumbar spine disorder, a cervical spine disorder, or chronic headaches during service or for many years thereafter; and there is no medical evidence that any of these disorders are causally related to service. Consequently, the Veteran has not presented evidence indicating a nexus between a current condition and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his July 2007 travel board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the July 2007 travel board hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). Analysis of the Claims The Veteran seeks service connection for a bilateral knee disorder, a lumbar spine disorder, a cervical spine disorder, and chronic headaches, which he contends are related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In the case of degenerative arthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 at 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 v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (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"). There was no pertinent abnormality on pre-service medical examination in April 1964. There were no pertinent complaints or adverse findings on entrance medical history and medical examination reports dated in February 1965. The Veteran complained in April 1966 of left knee "pinprick sensation" one week earlier, which had resolved, with subsequent left knee medial swelling and pain on extension. The knees were noted to be completely normal except for slight irritation on direct compression of the left knee. The impression was rule out early rheumatoid arthritis. There were no pertinent complaints or adverse findings on separation medical history and medical examination reports in February 1967. According to a July 2007 statement from the Veteran's wife, he has knee problems. She noted that she could tell when they were first married that he had problems because it was uncomfortable for him to get up after sitting. The Veteran testified at his July 2007 travel board hearing that he sought treatment in service for his knees, that he has continued to have knee problems after service, and that the other conditions at issue might be secondary to his bilateral knee disorder. The Veteran was afforded a VA examination in June 2011, which included review of the claims file. The Veteran complained of a long history of bilateral knee pain. He said that his left knee began to bother him when he got out of a car approximately 15 years ago and the right knee was injured at work when he went up some stairs approximately 12-13 years ago. He had undergone arthroscopic surgeries to the knees. He worked part-time as a clerk in a quick shop and had not lost any time from work over the previous year. Flexion of the knees was from 10 to 110 degrees on the right and from 0 to 115 degrees on the left. X-rays of the knees showed bilateral moderate to advanced tricompartmental osteoarthritis and meniscal chondrocalcinosis. Musculoligamentous strain was diagnosed. The examiner concluded in June 2011 that the Veteran's knee disability was less likely due to service and was not aggravated thereby because the only notation of a knee problem in service was some left knee discomfort in 1966 without any evidence of an injury, because there was no subsequent knee problem until many years after service discharge, and because he had post-service knee incidents approximately 12-15 years prior to the examination. The examiner noted that although the Veteran reported knee treatment by private physicians after service, and private treatment records were added to the claims file after the June 2011 VA evaluation, these records did not support his claim. The private treatment reports added to the file after the June 2011 VA examination report are dated from August 1955 to May 2011. It was reported in March 1963 that X-rays of the left knee were negative; he was given steroid injections in March 1963 and May 1964. According to a May 1964 letter from Lincoln Orthopaedic and Rehabilitation Center, X-rays of the knees showed a large flabellum in the posterior compartment of the left knee and a small flabellum in the posterior compartment of the right knee. Private treatment records for September 1977 reveal that the Veteran had low back pain without radiation after lifting. Records for August 1985 reveal that the Veteran got kicked by a cow in the lateral edge of the left knee; X-rays were normal. It was reported in March 1986 that he injured his back when a gilt ran between his legs. He had left sacroiliac dysfunction, for which he was given medication. Private treatment reports dated from February 2000 to February 2001 reveal that the Veteran reported in February 2000 that he had not had any knee problem before twisting his left knee while getting out of a car three weeks earlier; the impression was twisting left knee injury, rule out torn medial meniscus. He complained in November 2000 that he had not had any right knee problem before he hurt it on the job while ascending a ladder; the impression was highly suggestive of internal derangement to the medial meniscus. According to February 2000 records from Nebraska Orthopaedic and Sports Medicine, the Veteran noted that he had incurred a possible cracked cartilage in the left knee in January 1999. Saint Elizabeth Community Health Center records for March 2000 reveal that the Veteran underwent a partial medial meniscectomy of the left knee due to a torn medical meniscus. He underwent a partial medial meniscectomy of the right knee in January 2001 due to a torn medial meniscus. Private treatment reports for May 2004 reveal a large mass about the base of the neck, which was removed. According to a May 2006 letter from D. P. Heiser, M.D., the Veteran injured his left knee while getting out of a car in February 2000 and injured his right knee in November 2000 while at work. May 2010 treatment records from Dr. Heiser reveal bilateral knee complaints; the impressions were bilateral knee pain, worse on the right; and degenerative arthritis of the knees, worse on the right. According to March 2011 records from Butler County Health Care Center, the Veteran underwent excision of right cervical lipoma. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, 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); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The above evidence reveals that while the Veteran complained of left knee pain in service in 1966, he did not have any knee complaints or adverse findings on his February 1967 separation medical history and medical evaluation reports. Additionally, the initial post-service notation of any of the disorders at issue was not until many years after service discharge. In fact, the Veteran indicated in private treatment reports that he had not had any left knee problem until he twisted the knee in February 2000 and that he had not had any right knee problem until he injured it at work in November 2000. Moreover, the only nexus opinion on file, the June 2011 VA opinion, concluded after a review of the claims file and examination of the Veteran, that it was less likely than not that his current bilateral knee disability is due to service. The reasons for this opinion are because of a lack of evidence of a chronic left knee injury in service, a lack of evidence of post-service knee complaints until many years after discharge, and the notations in 2000 that the Veteran's knees were normal prior to recent injury. Consequently, service connection for a bilateral knee disorder is not warranted. With respect to the claims for service connection for a lumbar spine disorder, a cervical spine disorder, and chronic headaches, the Veteran is not claiming that these disorders were shown in service; and there is no notation of any of these disorders in service, including on separation evaluation in February 1967. The initial notation of any of these disorders is in September 1977, more than 10 years after service discharge, when he complained of low back pain. There is no medical evidence linking any of these disorders to service. Consequently, service connection is denied on a direct basis for a lumbar spine disorder, a cervical spine disorder, and chronic headaches. The Veteran contends that these disorders are secondary to his bilateral knee disorder. However, as the Veteran is not service connected for a knee disorder, service connection cannot be granted for another disorder as due to a knee disorder on a secondary basis under 38 C.F.R. § 3.310. Although the Veteran is competent to report his knee, spine and headache symptoms, he is clearly not competent to report that he has a chronic disorder due to service. With respect to the knees, laypersons are not competent to provide evidence in certain medical situations, to include a case involving degenerative disease. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The lay statement from the Veteran's wife has been taken into consideration in the decision. However, while this statement support the Veteran's contention that he has a history of knee pain, the statement is not probative of whether the Veteran has a current knee disorder due to service, meaning that the lay statement does not provide evidence that either supports or refutes whether there is a causal connection. Consequently, because all of the requirements for service connection are not shown, the Veteran does not have a bilateral knee disorder, a lumbar spine disorder, a cervical spine disorder, or chronic headaches as a result of service or a service-connected disorder. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a bilateral knee disorder is denied. Service connection for a lumbar spine disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for chronic headaches is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs