Citation Nr: 1302899	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  10-26 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from May 1995 to October 2005.  This case was remanded by the Board of Veterans' Appeals (Board) in April 2012 to the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO) to obtain a current examination and nexus opinion.  A VA evaluation with nexus opinion was obtained later in April 2012.

As a VA examination of the right knee, with nexus opinion, has been added to the claims files in response to the Board remand, there has been substantial compliance with the April 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the 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 videoconference hearing before the undersigned in February 2012, and a transcript of the hearing is of record.


FINDING OF FACT

The Veteran does not have a right knee disability that is causally related to his active military service.


CONCLUSION OF LAW

A right knee disability was not incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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. 2012).  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 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection.  In compliance with the duty to notify, the Veteran was informed in the October 2007 letter about disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

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.  No additional private evidence was subsequently added to the claims files after the letter.  

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 evaluation with nexus opinion was obtained in April 2012.  

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 opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings.  The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and statements, and provided a rationale for the opinion stated.  There is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  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 issue decided herein.  

The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his February 2012 videoconference 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 claim.  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).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission.  The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service.  They also asked questions to draw out the current state of the Veteran's disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  In response to the Veteran's testimony, a VA examination with nexus opinion was obtained in April 2012.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


Analysis of the Claim

The Veteran seeks service connection for a right knee disability.  Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

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).

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"). 

The Veteran's service treatment reports reveal normal lower extremities, except for asymptomatic pes planus, on enlistment medical history and medical evaluation reports in March 1995.  The Veteran complained in May 1997 of right knee and ankle pain after a four mile run; overuse tendonitis was diagnosed.  He complained in June 2004 of a four day history of pain in the low back, right shoulder and knee.  He was told not to run for two weeks.  When examined after two weeks, there was ttp (tenderness to palpation) in the peripatellar region without heat, redness, or effusion.  Joint spaces did not feel enlarged.  X-rays of the right knee in June 2004 did not show any evidence of fracture, dislocation, arthritis, or inflammatory changes; the joint spaces were well maintained.  He was told not to jump, march, run or do push-ups for two weeks.  The assessment was patellofemoral syndrome.  He was given capsaicin to apply to the knee 3-4 times daily.  No separation evaluation report is of record.

VA treatment reports dated from June 2009 to May 2010 reveal that the Veteran complained in June 2009 of right knee pain since service.  There was full range of motion of the lower extremities on examination, without crepitus or effusion.  Arthralgia of the right knee was diagnosed.  X-rays of the right knee later in June 2009 were considered normal, with no evidence of fracture or dislocation; the tibiofemoral and patellofemoral joints were preserved.  Knee pain was reported in May 2010.

The Veteran testified at his videoconference hearing in February 2012 that he had right knee pain in service as a result of a lot of running and of jumping out of airplanes, that he did not have a separation physical because he was involved in a nasty divorce and never got around to it, and that a January 2010 VA examination did not adequately evaluate his right knee.

A VA examination of the right knee was provided in April 2012.  The examiner noted review of the claims file.  It was reported that right knee range of motion was from 0 to 110 degrees with pain at 110 degrees.  There was right knee tenderness but no loss of strength or instability.  According to the examiner, the Veteran had a history of patellofemoral pain syndrome in service that resolved with treatment.  He had post-service right knee pain with some loss of motion, with arthralgia diagnosed in 2009.  After review of the claims files and examination of the Veteran, the examiner concluded that the Veteran's current right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by his in-service injury.  The examiner found no evidence in the record that the Veteran was treated for a chronic right knee disorder in service.

The above medical evidence does not show that the Veteran's current right knee problem is causally related to service.  The Veteran complained of right knee pain in service and patellofemoral pain syndrome was diagnosed and treated.  It was concluded on VA evaluation in April 2012, based on a review of the claims files and examination of the Veteran, that this disability resolved with treatment, as there was no abnormality found on X-rays in June 2009, including of the patellofemoral joint.  The VA examiner determined that the Veteran's post-service right knee problem, diagnosed in 2009 as arthralgia, was less likely than not due to in-service injury, as the evidence in service did not show a chronic disorder.  There is no medical opinion in favor of the claim.  Consequently, service connection for a right knee disability is not warranted.

The hearing testimony and lay statements from the Veteran have been taken into consideration in this decision.  Although the Veteran is competent to report his subjective knee symptoms, such as pain, he is not competent to diagnose himself with a knee disability other than pain and is not competent to provide an opinion as to etiology.  Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving etiology of an internal knee disorder.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

Although the Veteran testified in February 2012 that he complained of right knee pain in service and that he has had right knee disability since service, the medical evidence of record does not support his contentions.  His complaints of right knee disability in service were treated with rest and medication, and X-rays of the knee in June 2009 do not show any abnormality.  As noted above, it was determined by a VA examiner, after review of the claims file and physical examination of the Veteran, that there was a lack of evidence of a chronic right knee disorder in service and that the Veteran's current right knee pain was less likely than not due to service.  Moreover, the current diagnosis of arthralgia is essentially pain in a joint.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  However, pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER

Entitlement to service connection for a right knee disability is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs