Citation Nr: 1302934 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-05 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from June 1968 to June 1970 and from December 1971 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which confirmed and continued the denial of service connection for osteoarthritis of the right knee on the basis that new and material evidence had not been submitted. The Veteran testified before the undersigned Veterans Law Judge at the RO in September 2011. A transcript of the hearing has been associated with the claims file. In a February 2012 decision, the Board reopened the Veteran's claim for a right knee disability and remanded the issue for additional development. FINDING OF FACT Arthritis of the right knee is not shown by the most probative medical evidence of record to be etiologically related to a disease, injury, or event in service, nor is it shown to have manifested within 1 year of discharge from service. CONCLUSION OF LAW Arthritis of the right knee was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a July 2008 letter, prior to the date of the issuance of the appealed March 2009 rating decision. The July 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in March 1999 and April 2012. In a December 2012 statement, the Veteran contended that his April 2012 VA examiner did not accurately evaluate his claimed right knee condition fairly. The Veteran noted that the person who conducted the examination was a nurse practitioner and as the examination was for orthopedic issues, it should have been conducted by an orthopedic examiner. While the Board notes the Veteran's contentions regarding the adequacy of his April 2012 VA examination, the Veteran gave an accurate history regarding the right knee disability at issue and recounted his relevant symptomatology for each disability. After receiving this information, the examiner performed a thorough physical and conducted necessary diagnostic tests related to the Veteran's disability. The examiner documented these actions in detail in her examination reports. While the Board notes that the examiner is a nurse practitioner, the examination report was reviewed and endorsed by a Compensation and Pension physicians assistant. As such, the Board finds that April 2012 VA examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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) In fact, 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 Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A disorder may be service connected if the evidence of record, regardless of its date, shows that the Veteran had a chronic disorder in service or during an applicable presumptive period, and that the Veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has a current right knee disability that is related to service. At his September 2011 hearing, he testified that he had knee symptoms in service and that they continued since then. Service treatment records reflect that he complained of pain in his knee caps in August 1976. His October 1989 separation examination was negative for complaints or diagnoses related to a right knee disability. A July 1995 treatment record noted that the Veteran presented with complaints of bilateral knee pain. The Veteran underwent a VA examination in March 1999. He reported that his right knee ached at night and he felt a popping when he moved. He noted that his right knee problems began right before his retirement in 1990. The diagnosis was osteoarthritis of the right knee, moderately severe, with additional early patellofemoral arthritis. In March 2001, the Veteran underwent an internal derangement of his right knee. In a December 2009 letter, a private physician noted that he had been treating the Veteran for several medical problems over the years including osteoarthritis of the right knee. He opined that "although I cannot determine this retrospectively it seems reasonable that all of the physical activity that he has done during his life has contributed to this, including those activities during his service". In a September 2011 handwritten note, a private orthopedist noted that the Veteran's right knee arthritis was not of recent origin. He noted that it was most likely that the arthritis was present prior to 1990. Per the February 2012 Board remand instructions, the Veteran underwent a VA examination in April 2012. The Veteran reported that his knee problems began prior to 1976 but noted that his documentation for knee problems began in 1976 when he sought attention in the Marine Corps. He explained that since this time in service, he had experienced consistent problems with his knees during his military career but due to his career goals, he did not seek attention for his knees. After reviewing the claims file, the examiner determined that the Veteran's right knee disability was less likely than not incurred in, or caused by the claimed in-service injury or event. The examiner noted that the August 1976 service treatment record concerned a flu syndrome where aching of knees, finger and forehead were present. During service, many medical examinations took place and while the Veteran's spine complaints and assessments were well documented, there was little mention of the Veteran's knees. Additionally the military exit physical did not indicate knee problems. The examiner noted the December 2009 letter by the Veteran's family provider as well as the September 2011 letter from an orthopedist who opined that the Veteran's right knee arthritis was not of recent origin. The examiner determined that the Veteran's right knee disability was less likely than not related to service because the claims file evidence did not support a knee condition connection and the only piece of supporting evidence beyond the Veteran's declaration is the orthopedic opinion relating arthritis to 21 years of service. The examiner also noted that the Veteran's 2010 operative findings of a meniscus injury were not due to service as they were a more recent development. The diagnosis was degenerative joint disease. Having carefully reviewed the record, the Board concludes that service connection is not warranted for the claimed right knee disability. With regard to establishing service connection on a presumptive basis under 38 U.S.C.A. §1112 , the Board notes that there is no medical evidence of record indicating that the Veteran had a diagnosis of arthritis of the right knee to a compensable degree within one year of discharge from active duty. The Board notes that the September 2011 private orthopedist indicated that that it was most likely that the arthritis was present prior to 1990. However, under the rating schedule, osteoarthritis must be demonstrated by X-ray examination. 38 C.F.R. §4.71a, Diagnostic Code 5003 (2012). The claims file contains no X-ray examinations which demonstrated osteoarthritis within one year of discharge from active duty as the first x-ray evidence of osteoarthritis is the March 1999 VA examination. Therefore, service connection for arthritis of the right knee cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). There is a current diagnosis of degenerative joint disease of the right knee hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that the Veteran's service treatment records demonstrate complaints of pain in his knee caps in August 1976. The service treatment records however, were negative for any or diagnoses of any chronic right knee disorder as the right knee complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, the October 1989 separation examination was negative for complaints or diagnoses related to a right knee disability. While the Veteran had in-service complaints of right knee cap pain, there are no clinical findings or diagnoses of a right knee disability until many years after service. The first post-service evidence of a right knee condition was in July 1995 treatment record which noted that the Veteran presented with complaints of bilateral knee pain. The first diagnosis of a right knee disability is the March 1999 VA examination which diagnosed the Veteran with right knee osteoarthritis. The Board has considered the lay evidence offered by the Veteran to VA. This includes his and his representative's statements and his September 2011 testimony in which they asserted their belief that the Veteran's claimed right knee disability is related to service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Thus, he is competent to describe experiencing knee pain while in service. However, the Board concerned with the alternative and somewhat conflicting explanations offered by the Veteran as to why there are no complaints documented in service. For example, the Veteran and his representative noted during his personal hearing that other musculoskeletal problems he experienced in service and the medication he received as a result may have masked the development of arthritis in his knee. However, the Veteran also asserted during his subsequent VA examination that he experienced chronic knee problems since prior to 1976 and up until his discharge, but never sought treatment because it may have put his career goals at risk. The Board finds this explanation particularly troubling, as the Veteran did receive treatment for a variety of other musculoskeletal problems throughout his military service, as he and the representative acknowledged at the hearing, which calls into question the assertion that the Veteran was reluctant to seek treatment for such complaints. In addition, the Board finds it significant that the Veteran completed a medical history form in October 1989 in anticipation of his retirement and specifically denied any history of joint paint, muscle cramps or pain, or "Arthritis." Similar denials are also contained in a medical history form completed in October 1987, as well as in earlier service treatment records. The Board again notes that the fact that these same documents do reflect complaints of back pain and tingling in the lower extremities, both of which were attributed to disability of the spine, as well as complaints such as headaches and hearing loss, strongly suggests that had the Veteran been experiencing chronic problems in his knees, he would not have remained silent and would not have specifically denied experiencing symptoms such as joint pain. The Board finds that the Veteran's contemporaneous denials of symptoms such as joint pain at separation distinguish the facts in this case from those in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred in finding that service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. Here, rather than relying on a complete absence of complaints, the Board is relying on the fact that the Veteran is documented as having specifically denied a history of joint pain on several occasions during service, including on at least two occasions during the last two years of his service. As noted, this is in stark contrast to the fact that the Veteran at that time did report numerous other chronic problems, including back pain, headaches, and hearing loss. Under such circumstances, the Board finds that the current assertions by the Veteran of having a continuity of symptomatology since service are not credible. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board notes that the relationship between his right knee disability and service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. As noted above, in a December 2009 letter, a private physician opined that "although I cannot determine this retrospectively it seems reasonable that all of the physical activity that he has done during his life has contributed to this, including those activities during his service". Additionally, in a September 2011 handwritten note, a private orthopedist noted that the Veteran's right knee arthritis was not of recent origin and was most likely present prior to 1990. Conversely, the April 2012 VA examiner specifically found that the Veteran's current right knee disability was less likely than not related to his service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the April 2012 VA examiner's opinion to be the most probative. Regarding the December 2009 private physician's opinion that "it seems reasonable" that all of the physical activity that the Veteran has done during his life has contributed to his current right knee disability, the Board notes that the physician also notes in that same statement that he was unable to make the determination of whether the Veteran's current right knee disability was incurred in service retrospectively. The Board notes that such a qualifying statement supports the conclusion that the physician's opinion that "it seems reasonable" that military service contributed to the disorder is no more than mere speculation. An examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Regarding the September 2011 handwritten letter from a private orthopedist, while the letter related the Veteran's right knee disability to service, no rationale was provided for this opinion and he did not provide any specific evidentiary or medical basis for the opinion. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In contrast, the April 2012 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed right knee disability was not related to the Veteran's service. Significantly, unlike the other physicians, the examiner also noted that the Veteran's in-service complaints of knee cap pain were found at the time to be related to a flu syndrome where aching of knees, finger and forehead were present. The examiner also noted that during the Veteran's many medical examinations in service, there was little mention of the Veteran's knees and the military exit physical did not indicate knee problems. The Board notes that the VA examiner's interpretation of the record is consistent with the Board's earlier conclusion that there is no credible evidence of a continuity of symptomatology during and since service. For these reasons the Board finds the April 2012 VA examiner's assessment to be the most probative. Given that the most probative opinion is against a finding of a relationship between a right knee disability and service, the Board finds that service connection is not warranted. The Board again notes the Veteran's contention that his degenerative joint disease of the right knee was incurred in service. However, having found his assertions of continuity of symptomatology not credible, the Board further finds that the Veteran is not shown to possess the appropriate medical training and expertise, so as to otherwise render him competent to offer an opinion on such a complex medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, supra. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, the Veteran's lay assertions in this regard are far outweighed by the conclusions of the VA examiner. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against finding that his claimed right knee disability is related to service. Thus, the benefit sought on appeal is denied. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs