Citation Nr: 1305017 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-08 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2010, December 2010 and June 2012, the Board remanded the case for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. There has been no demonstration by competent medical evidence or competent and credible lay evidence of record that the appellant has a left knee disability that is related to service. 2. The appellant does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for assignment of a TDIU rating have not been met. 38 C.F.R. § 3.340, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's service connection claim. Appropriate notice was provided in a February 2007 letter, prior to initial adjudication of the claim. Mayfield, 444 F.3d at 1333. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded January 2008 and January 2011 medical examinations and a June 2012 VA opinion to obtain an opinion as to whether any left knee disability found was the result of service. The Board finds the June 2012 VA addendum opinion is adequate. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board also finds that the June 2012 VA addendum opinion addressed the issues raised by the Board in the June 2011 remand order, including addressing the appellant's post service treatment in 2003 and 2008 and his treatment in the anterior knee. See Stegall, 11 Vet. App. at 268. In regard to the appellant's claim for entitlement to a TDIU, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); aff'd, 281 F.3d 1384 (Fed. Cir. 2002); cert. denied, 537 U.S. 821 (2022). See also 38 C.F.R. § 3.159(b)(3)(ii). As discussed below, the facts are not in dispute, instead resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to entitlement to a TDIU. The duties to notify and assist are therefore inapplicable and need not be considered. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Left Knee Disability Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Analysis The appellant contends that he is entitled to service connection for a left knee disability. For the reasons that follow, the Board finds that service connection is not warranted. The appellant asserts that he injured his left knee in service. He specifically asserted that he injured his left knee while running wind sprints for physical training at Camp Pendleton, California. He stated that he never fully recovered from this injury. See June 2008 notice of disagreement. He stated that he also injured his knees while participating in a multi-service rodeo at Fort Sill, Oklahoma while he was on temporary active duty. A January 2011 VA examination report reflects that the appellant had a left medial meniscus tear. Thus, the appellant had a left knee disability during the period on appeal, satisfying the first element of a service connection claim. The appellant's service treatment records reflect that he had a normal left knee at the time of his entry into service. A September 1986 enlistment VA examination report indicates the appellant's lower extremities were normal. No knee conditions were noted. In a September 1986 report of medical history, the appellant denied having a "trick" or locked knee. A January 1987 service treatment record reflects that the appellant presented for follow up of the left knee. On examination, the interior aspect of the left knee was swollen with point tenderness. He had a full range of motion. The assessment was a swollen left knee. A March 1987 service treatment record indicated the appellant had trauma to the left knee from playing football. He had pain to the medial collateral ligament (MCL) area. He could bear full weight. There was a negative drawer test. A March 1987 service treatment record reflects that the appellant presented for follow up for a left knee injury in a football game. The appellant complained of joint line pain. The impression was a bone contusion versus against damage. He was instructed to wear a knee brace and use crutches. A follow-up March 1987 service treatment record indicates the appellant had a left knee sprain. A March 1987 X-ray report was negative. An April 1987 service treatment record reflects that the appellant missed an orthopedic consultation, but reported that his knee was not bothering him. An August 1990 separation examination report reflects that the appellant's lower extremities were normal. In an August 1990 report of medical history, the appellant denied having a "trick" or locked knee. However, he noted a history of a knee injury in March 1987. In a service personnel record, the appellant referred to rodeo as a hobby. However, the appellant's service treatment records do not reflect that he complained of any knee symptoms following an in-service rodeo injury. A May 2003 private treatment record reflects that the appellant was evaluated for left knee pain and swelling. The record noted that the appellant was an ex-rodeo competitor and had injured both knees multiple times with what appeared to be significant knee effusions over the last several years. He was retired, but still active with horses. He had episodes of left knee swelling associated with pain, which he noticed mostly after a day on his feet or a day full of activities. He denied any further trauma. The pain was over the posterior lateral aspect of the knee. On examination, he had effusion on the popliteal fossa, consistent with a probable Baker's cyst, which was slightly tender to palpation and markedly tender over the lateral joint line posteriorly. His biceps femoris and lateral quadriceps muscles were non-tender to palpation. He had an inability to fully extend his knee, causing pain, and could get to within 10 degrees of a full extension. He had full flexion. He had increased laxity on the left knee compared to the right. A three-view X-ray including a tunnel view was done, which showed no bony abnormalities, and no signs of degenerative joint disease or joint space narrowing. The assessment was a Baker's cyst and possible lateral meniscal tear in a probable ACL deficient knee. The physician noted that she suspected during the appellant's multiple rodeo injuries that he had injured it in the past and was not having subsequent problems. He may have completed a partial meniscal tear. A May 2003 MRI report noted there was some increased signal within the posterior horn of the medial meniscus but the signal did not appear to extend through to either the superior or inferior articular surface. Findings were felt to represent some mucoid degenerative change rather than a tear. No definite meniscal tears were identified. No ligament or meniscal pathology was identified. A May 2003 follow-up private treatment record reflects that the results of an MRI were relatively normal. He still had soreness in the left knee. He had some increased sign in the posterior horn of the medial meniscus but it was not a through-and-through tear. It was more consistent with meniscal degeneration. He had some increased signal in his patella, which she suspected maybe traumatic chondromalacia. On examination, the appellant had pain with squatting, and the swelling on the posterior aspect of the knee had improved. The impression was left knee pain, traumatic chondromalacia. A June 2003 private treatment record from R.S., PT, reflects that the appellant complained of pain in the posterior knee, medial knee and under the patella. He had difficulty standing on a straight knee. A June 2003 private treatment record noted the appellant was diagnosed with left knee sprain and patella subluxation. The note indicated that the appellant had a non-traceable onset of knee swelling and an MRI was negative. A June 2003 private treatment record noted that the knee swelled up two weeks ago. A February 2007 VA treatment record indicates the appellant was evaluated for left knee pain. He reported that the pain was ongoing since an initial injury in 1987-88 while he was in service. The appellant reported that he twisted his knee and fell while running sprints. He stated that he was evaluated at that time and had some fluid drawn of the knee. He stated that ever since then he had ongoing knee pain which had worsened in the past four years. He reported that he had medial lateral and some posterior pain. The impression was left knee pain, likely traumatic arthritis, pending X-rays. Another February 2007 VA treatment record indicates the left knee X-ray was negative. The appellant was evaluated at a VA examination in January 2008. The VA examiner found the appellant had subjective left knee pain with normal X-rays. The VA examiner found that the left knee pain was not caused by or the result of an injury in service. The VA examiner stated that there was no evidence of degenerative joint disease in the left knee, there was a quick (one month) resolution of the left knee injury in service, and when the appellant sought care for his knee later on, he told the orthopedic surgeon he had injured it many times in the rodeo, and she stated that he was ware that this was the probable cause for his pain. The VA examiner's rationale indicates he thought the appellant was being untruthful about his inservice injuries because in 2003, he reported that he had injured his knee multiple times in rodeos. As noted above, the appellant's service treatment records indicate he participated in rodeos during active service. Thus, the VA examiner's rationale is inaccurate and the VA opinion is inadequate. Consequently, the January 2008 VA opinion has no probative value. An April 2008 VA treatment record indicated the appellant had left knee pain. The appellant wore a knee brace. An April 2008 VA treatment record addendum indicated the left knee had a lax patella with no pain. There was slight laxity and pain with varus stress. A June 2008 VA MRI report indicated there was a small free edge radial tear in the body of the medial compartment. The diagnosis was a left knee medial meniscus tear. The plan was a left knee arthroscopy. In another June 2008 VA treatment record, the appellant stated that he hurt his left knee in a twisting injury in 1989. A June 2008 VA operation report indicated the appellant had a left knee arthroscopy, debridement and partial medial meniscectomy. The findings were a small complex tear of the posterior horn of the medial meniscus and a small fraying of the medial meniscus midsection, and grade 3 chondromalacia of a large segment of the medial femoral condyle. An June 2008 VA orthopedic inpatient treatment note reflects that the appellant had a scope of the left knee to débride a torn medial meniscus and medial femoral condyle with no complications. An addendum noted that he would have early degenerative joint disease of the medial compartment of the left knee. The appellant's left knee was evaluated at a VA examination in January 2011. The VA examiner found that the appellant's knee condition was not caused by or the result of military service. The VA examiner noted that the appellant was seen for swelling of the left knee in service, but it was in the anterior portion and his surgery in 2008 was for problems in the medial part of the knee. A private orthopedist evaluated him and told him the knee problem was due to multiple injuries in the rodeo. The VA examiner stated that there was no record of a rodeo injury to the knee in service. An MRI of the knee was negative in 2003. The appellant denied having knee problems on discharge from service. The VA examiner also noted that when the appellant was seen for left knee swelling after playing football in service, the location of the swelling was described as anterior. In response to the Board's June 2012 remand, the January 2011 VA examiner provided a clarifying addendum opinion in June 2012. The VA examiner stated that it was less likely than not that the appellant's left knee disability was incurred in or caused by the claimed in-service injury. The VA examiner noted that the appellant injured the left knee in service, but denied symptoms at discharge. Thus, there was no evidence of a chronic problem in service. The appellant had an MRI of the knee that was negative in 2003, and in 2008 a repeat MRI showed a medial meniscal tear. Thus, the examiner concluded that the medial meniscal tear occurred between 2003 and 2008. The VA examiner noted that the 2008 MRI continued to show no anterior pathology. As noted above, the VA examiner had explained in the January 2011 opinion that the appellant was seen for swelling in the anterior portion of the left knee in service. As the January 2011 VA examiner provided a thorough rationale for her opinion that the appellant's left knee disability was less likely than not incurred in or caused by an in-service injury in the January 2011 VA opinion and June 2012 addendum opinion, the Board finds the opinion to be adequate and thus, probative. The appellant has contended that his left knee disability is related to service. Although a lay person may be competent to report the etiology of a disability, a tear of the medial meniscus is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by medical evaluation, the Board finds that the probative value of any such opinion is outweighed by that of the January 2011 VA examiner, who has education, training and experience in evaluating the etiology of a left knee disability. The VA examiner reviewed the appellant's claims folder and opined that it was not at least as likely as not that the appellant's left knee disability was related to service. Other than the appellant's statements, there is no evidence supporting a nexus between the appellant's left knee disability and service. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). The appellant has asserted that he has had left knee pain since service. As a lay person, the appellant is competent to report symptoms capable of lay observation, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the appellant noted that he had a history of a left knee injury in March 1987 in the August 1990 report of medical history, he denied having a "trick" or locked knee. He also did not report any current complaints regarding his left knee. The May 2003 private treatment record indicates that the appellant reported that he was an ex-rodeo competitor and had injured both knees multiple times with what appeared to be significant knee effusions "over the last several years." As the private treatment record was dated 13 years after the appellant left service, it indicates he reported having several knee injuries following service. The May 2003 private treatment record, which was dated several years prior to the appellant's claim for benefits, does not reference the appellant's in-service left knee injury or indicate that he reported having pain since then. Additionally, the appellant was diagnosed with a left knee medial meniscus tear during the period on appeal. As noted by the January 2011 VA examiner in the June 2012 addendum opinion, the May 2003 MRI reflects that the appellant did not have a through-and-through tear in the medial meniscus, which indicates the tear occurred after May 2003. Even if the appellant had symptoms of left knee pain, the medical evidence does not show that he had a tear in the left knee medial meniscus prior to May 2003. In the June 2003 private treatment records, the appellant referred to his past in the rodeo, but did not mention his in-service injury. He did not indicate that he had experienced continuous pain since service. Based on the evidence of record, including the fact that the appellant denied having problems with his left knee in the August 1990 separation report of medical history, and indicated he injured both knees in the rodeo "over the last several years" before May 2003, the Board finds the appellant's statements are inconsistent. Thus, the Board finds the appellant's assertion that he has had left knee pain since service is less than credible. In sum, the Board finds that a preponderance of the evidence is against the appellant's claim for entitlement to service connection for a left knee disability. The appellant was diagnosed with a medial meniscus tear in the left knee during the period on appeal and thus had a current knee disability. The appellant's service treatment records also reflect that he was treated for a left knee injury during service. However, the evidence is against a finding of a nexus between the appellant's current left knee disability and service. The January 2011 VA examiner provided a probative opinion and June 2012 addendum opinion that the appellant's left knee disability was not at least as likely as not related to service. Although the appellant has contended that his left knee disability is related to service, the Board finds the January 2011 VA examiner's opinion to be more probative. Additionally, as discussed above, the Board finds the appellant's assertions of continuity of symptoms of left knee pain to be less than credible. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. TDIU A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the appellant does not have any service-connected disabilities. To be entitled to TDIU, the appellant must be unable to secure and following a substantially gainful occupation as a result of service-connected disabilities. As the appellant does not have any service-connected disabilities, as a matter of law, there is no basis for assignment of a TDIU. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to a TDIU is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs