Citation Nr: 1302228 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-27 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected medial and lateral meniscectomies with traumatic arthritis of the left knee status post total knee replacement. 2. Entitlement to service connection for a left hip disorder, claimed as secondary to service-connected medial and lateral meniscectomies with traumatic arthritis of the left knee status post total knee replacement. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007, May 2008 and October 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a local hearing before a Decision Review Officer (DRO) in May 2009, and at a videoconference hearing held before the undersigned Veterans Law Judge in March 2012. A copy of each transcript is of record. In June 2012 the Board remanded the Veteran's claim for further development. The requested development has been completed and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent, credible, and probative evidence of record does not demonstrate that a right knee disability is proximately due to or the result of a service connected disability, including aggravation by a service connected disability. 2. The competent, credible, and probative evidence of record does not demonstrate that a left hip disability is proximately due to or the result of a service connected disability, including aggravation by a service connected disability. CONCLUSIONS OF LAW 1. A right knee disorder is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §3.310 (2012). 2. A left hip disorder is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a 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 or her representative, if any, 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter dated in April 2007, prior to the initial adjudication of the claim. The April 2007 letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. This letter also informed the Veteran of how disability ratings and effective dates are determined. Neither the appellant nor his representative has raised allegations of prejudice resulting from any error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also 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 ; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. The record includes service treatment records and post-service private and VA treatment records. The Veteran has not identified any outstanding evidence that is pertinent to these claims. Moreover, the Veteran underwent adequate and probative VA medical examinations. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). 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). The Board finds that the VA opinions obtained in this case are adequate, as the opinions are predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinions provided considered all of the pertinent evidence of record, to include service treatment records, VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran 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 Veteran is required to fulfill VA's duty to assist the Veteran 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. Analysis of Claims Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. Thus, the amended version of 38 C.F.R. § 3.310 is applicable to the Veteran's claims. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his current right knee disability and left hip disabilities were either caused or aggravated by service-connected medial and lateral meniscectomies with traumatic arthritis of the left knee status post total knee replacement. The Veteran had active duty service from December 1967 to December 1969. Service treatment records do not reflect complaints or diagnoses regarding the right knee or left hip. A December 1969 rating decision granted service connection for a left knee disability. The Veteran has a current diagnoses of degenerative joint disease of the right knee and degenerative joint disease of the left hip. In a statement dated in May 2007, a private physician, Dr. S.N., noted that the Veteran had a left knee replacement. He was unable to bear weight on that knee fully, and due to improper distribution of weight on the other knee, started developing pain in the right knee with subsequent damage to that knee and the left hip. The Veteran had a VA examination in November 2007. The examiner indicated that the claims file was reviewed. The Veteran reported crepitus and pain with extension of the knee. He reported that the onset was in 2004. The Veteran reported pain in the bilateral hips. He reported that the date of onset was 2005. The examiner noted that the Veteran had left knee lateral and medial meniscectomy while on active duty. Subsequently he had recurrent left knee pain. In 2001, he had a total knee arthroplasty. The examiner diagnosed osteoarthritis of the right knee. The examiner stated that, while these changes could be attributed to wear and tear and altered weight bearing due to continuing discomfort secondary to the left knee total arthroplasty, there is significant evidence that this is less likely than not. The examiner noted, with regard to the right knee, the MRI indicates the presence of grade 3 tear of the posterior horn of the medial meniscus and near or complete tear of the ACL. The examiner stated that neither of these findings are easily explained by the left knee condition and are suggestive of trauma to the right knee. The examiner opined that, although he could not rule out that the Veteran's right knee condition is secondary to his left knee condition, they are more likely the result of concurrent osteoarthritic changes that were more accelerated in the left knee because of a history of trauma to that joint. The examiner diagnosed osteoarthritis of the bilateral hips. With regard to an etiological relationship, the VA examiner opined that the Veteran's left hip condition is less likely than not caused by or a result of his service-connected left knee condition. The VA examiner noted that MRIs show degenerative changes of the left hip. The examiner opined that, while these changes could be attributed to wear and tear and altered weight bearing due to continuing discomfort secondary to the left knee total arthroplasty, there is significant evidence that this is less likely than not. The examiner noted with regard to the left hip that MRIs indicate changes that are bilateral and equal, consistent with the Veteran's symptoms. The examiner stated that, if these changes were caused by or a result of the Veteran's left knee condition, there would be some disparity between the right and left sides at the hip and lumbar spine. The examiner opined that, therefore, although he could not rule out that the Veteran's left hip condition is secondary to his left knee condition, it is more likely the result of concurrent ostearthritic changes that were more accelerated in the left knee because of the history of the trauma to that joint. The Veteran had a VA examination in June 2009. The Veteran reported that he began to have difficulty with his right knee in 1999, and he felt this was secondary to the total knee replacement on the left. The Veteran reported pain in the left hip since 2001. The VA examiner diagnosed degenerative joint disease of the right knee with moderate disability. The VA examiner opined that the right knee disability is less likely than not secondary to total knee replacement of the left knee. The examiner explained that the onset of the left knee problem was with initial injury in 1968 and the eventual knee replacement in 1998. The difficulty with the right knee began in 1991. The examiner diagnosed degenerative joint disease of the left hip with moderate disability. The examiner opined that the left hip is less likely than not secondary to the total knee replacement of the left knee. The examiner noted that the onset of the left knee problem was with initial injury in 1968 and the eventual knee replacement in 1998. The examiner explained that the difficulty with the left hip began in 2001. The Veteran had a VA examination in July 2011. The Veteran reported the onset of pain over the anterior and anterior lateral right knee around 2005. The Veteran reported the onset of generalized left hip pain in 2003. He first noted it in the left SI joints, and it was associated with the onset of lower back pain. However, since that time, he had begun to get pain deep in the left hip. The VA examiner diagnosed mild degenerative joint disease of the right knee. The examiner opined that it is less likely than not that this was caused by or the result of active military service or caused by or the result of the Veteran's left knee condition. The examiner stated that he knows of no peer reviewed medical literature and no medical authority which would support the contention that this mild degenerative joint disease of the right knee is caused by or aggravated by the Veteran's left knee condition. The examiner opined that the degenerative joint disease is no worse than would be anticipated at the Veteran's current age, and it should be noted that the resolution of the severe pain in the left knee would cause the Veteran to begin to notice other joint pains which were not nearly as severe and therefore were ignored prior to the successful surgery and knee replacement. The VA examiner diagnosed mild degenerative joint disease of the left hip. The examiner opined that it is less likely than not that this was caused by or related to active military service or caused by or related to the Veteran's left knee condition. The examiner stated that he knows of no medical authority and no peer reviewed medical literature which would support the contention that mild degenerative joint disease in the left hip is caused by or related to the severe degenerative joint disease that was existent in the left knee and certainly not from the prosthetic device which was successfully placed in 2001. The examiner stated, with respect to the left hip, it is likely that the Veteran post-surgery, with relief of pain from his knee, began to notice pain in other joints such as his left hip. The examiner stated that the mild degenerative disease found on the left hip is no more than would be anticipated with the Veteran's age in a weightbearing joint. In August 2011, the VA examiner reviewed the claims file and opined that his opinion was unchanged from that noted on the examination report previously released. In June 2012, the Board remanded the claim to obtain an addendum medical opinion from the physician who provided the July 2011 VA examination and August 2011 addendum. In an addendum dated in June 2012, the VA examiner opined that it is less likely than not that the Veteran's right knee condition is caused by, aggravated by or the result of the Veteran's service-connected left knee condition. The examiner reasoned that there is no peer review medical literature and no medical authority which would support the contention that the Veteran's mild degenerative disease of the right knee is caused by or related to the Veteran's left knee condition. The examiner explained that the degenerative disease is no worse than would be anticipated at the Veteran's current age, and it should be noted that the resolution of the severe pain in the left knee would cause the Veteran to begin to notice other joint pains which were not nearly as severe and therefore were ignored prior to the successful surgery and knee replacement. The VA examiner opined that it is less likely than not that the left hip condition was caused by, aggravated by or the result of the Veteran's service-connected left knee condition. The examiner stated that he knows of no medical authority and no peer reviewed medical literature which would support the contention that this mild degenerative disease in the left hip is caused by or related to the severe degenerative disease that was existent in the left knee and certainly not from the prosthetic device which was successfully placed in 2001. The examiner stated, with respect to the left hip, it is likely that the Veteran post-surgery, with relief from pain in his knee, began to notice pain in his other joints such as his left hip. The examiner stated that the mild degenerative disease found on the left hip is not more than would be anticipated with the Veteran's age in a weightbearing joint. In order to establish service connection on a secondary basis, there must be medical evidence of a nexus (either on a direct basis or due to aggravation) between a service-connected disability and the disability at issue. Wallin, supra; Reiber, supra. The evidence of record is against a finding that such a relationship exists between the Veteran's service-connected left knee disability and his current right knee disability or left hip disability. The private physician's statement dated in May 2007 provides support for the claims. VA examinations in November 2007, June 2009, and July 2011 found that the claimed right knee and left hip disabilities are less likely than not secondary to the Veteran's service-connected left knee disability. The June 2012 opinion concluded that the right knee and left hip disabilities are not aggravated by a service-connected left knee disability. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. After review of the record, the Board finds that the preponderance of the competent, credible and probative evidence is against the claims of service connection for right knee and left hip disabilities, claimed as secondary to service-connected left knee disorder. The Veteran has limited his claim of service connection on the basis that the claimed disabilities are secondary to, either by causation or aggravation, the service-connected left knee disability. Neither the Veteran nor his representative have asserted that either the right knee or left hip disability had its onset in service or is otherwise related to active service. As such, the Board will consider the claims on a secondary basis only. The Board finds the opinion provided by Dr. S.N. less probative than the opinions those of the VA examiners. The VA medical opinions were more through and detailed and were based upon a review of the entire claims file, including the service medical records. The statement of Dr. S.N. does not indicate that any medical records or the claims file were reviewed in rendering the decision. While the statement notes that after left knee replacement, the Veteran developed pain in the right knee with subsequent damage to that knee and pain in the left hip, Dr. S.N. did not indicate any diagnosis related to the noted damage to the right knee and did not provide any diagnosis regarding the left hip other than pain. Pain alone without an underlying disability does not constitute a disability for which service connection is warranted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that symptoms alone, without an underlying disorder, cannot be service connected). Additionally, the opinion of Dr. S.N. does not address or establish the degree of aggravation of the claimed disabilities. As such, the opinion does not provide a legal basis for a grant of service connection based on secondary service connection. 38 C.F.R. § 3.310 (2012). The Board finds that the VA opinions expressed in November 2007, July 2011 and June 2012 are more probative than the private statement of Dr. S.N. and that the weight of the competent and probative evidence demonstrates that the right knee and left hip disabilities are not proximately due to or aggravated by the service-connected left knee disability. As noted above, the VA examiners reviewed the claims file and provided a rationale for the opinions expressed. The November 2007 VA examiner indicated that while he could not rule out that the right knee and left hip condition are secondary to the left knee condition, he concluded that it was more likely to concurrent osteoarthritic changes that were more accelerated in the left knee because of the history of trauma to that joint. The July 2011 opinion with the June 2012 addendum to that opinion show that the examiner reviewed the claims file, provided an adequate rationale for the opinions rendered and determined that it was less likely than not that the right knee and left hip disabilities were caused or aggravated by the service-connected left knee disability. As such the Board finds that the VA opinions outweigh the private opinion of Dr. S.N. and service connection for right knee and left hip disabilities claimed as secondary to the service-connected left knee disability is not warranted. The Board has considered the Veteran's lay statements. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. At the Board hearing, the Veteran testified that he noticed pain in his right knee and left hip about nine or ten years after the cartilage was removed from his left knee. At the May 2009 DRO hearing, the Veteran stated that, since he limps on the left leg, it throws his right leg out of kilter. The Veteran is competent to testify to his observable symptoms. The Board finds credible the Veteran's assertions of symptomatology and disability manifestations, and he is competent to provide such evidence. See Layno, supra. The Veteran, however, is not competent to provide evidence regarding causation in a medically complex questions such those herein, which necessitate medical expertise to determine. Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen, supra. As a result, the Board finds the weight of the evidence is against a finding that the current left hip and right knee disabilities are caused or aggravated by the service-connected left knee disorder. For the reasons set forth above, the Board finds that there is a preponderance of the evidence against the claims for service connection for right knee and left hip disabilities, claimed as secondary to service-connected left knee disorder. As there is a preponderance of the evidence against the claims, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107. ORDER Service connection for a right knee disorder, claimed as secondary to service-connected medial and lateral meniscectomies with traumatic arthritis of the left knee status post total knee replacement, is denied. Service connection for a left hip disorder, claimed as secondary to service-connected medial and lateral meniscectomies with traumatic arthritis of the left knee status post total knee replacement, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs