Citation Nr: 1305576 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-15 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a right knee disability, including as secondary to service-connected left knee patellofemoral pain syndrome. 2. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran reportedly had active service from August 1979 to July 1981. The left knee matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO), as well as a November 2009 rating decision of the Sioux Falls, South Dakota RO. The right knee matter comes before the Board on appeal from a November 2009 rating decision of the Sioux Falls, South Dakota RO. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in April 2012; the hearing transcript has been associated with the claims file. The issue of entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. No right knee abnormalities were reported by the Veteran or clinically assessed upon his separation from service. 2. The first post-service right knee treatment of record is in 2009, approximately 28 years after his discharge from service. 3. The only medical opinions of record fail to relate the Veteran's right knee disorder to service or to the Veteran's service-connected left knee disorder. CONCLUSION OF LAW The criteria for service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder, have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b) . Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). Proper VCAA notice 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). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) the Veteran status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. VA's notice requirements were satisfied by a letter issued in August 2009, which explained the evidence the Veteran was responsible for obtaining, the evidence VA would obtain on his behalf, the criteria for establishing service connection, and the method by which VA determines disability ratings and effective dates. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his right knee claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above 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. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the right knee claim. However, the Veteran's testimony indicated he understood what was necessary to establish entitlement to the benefits sought. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, 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. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding VA's duty to assist, the Veteran's service treatment records and VA treatment records are associated with his claims file, and the Veteran has not identified any relevant, available treatment records that have not been obtained. The Veteran was also provided with relevant VA examinations in October 2009 and February 2011. The Board finds that the VA examinations are sufficient for adjudicatory purposes. The examination reports reflect that the examiners performed adequate physical examinations of the Veteran, and the medical opinions rendered were predicated upon an accurate review of the Veteran's claims file. Moreover, the opinions are supported by sufficient rationales. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection The Veteran contends that his right knee disorder is attributable to his service-connected left knee disorder. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for an increase in disability caused by a service-connected disorder. 38 C.F.R. § 3.310(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's service treatment records reflect that the Veteran complained of right patella pain for 24 hours in September 1979. The right knee showed full range of motion, and no edema. Follow-up revealed a small infected hair follicle. The diagnostic impression was folliculitis, and "knee strain? Doubt." A Report of Medical History dated in June 1981 for Chapter 13 purposes reflects that the Veteran complained of "trick" or locked knee, although it is not explained further as to which knee or what symptoms were involved. The corresponding June 1981 examination report reflects that the Veteran's lower extremities were clinically evaluated as normal. VA outpatient treatment records dated in July 2009 reflect that the Veteran had bilateral knee patellofemoral chondromalacia and right knee medial and lateral compartment arthritis. The Veteran underwent a VA examination in October 2009. He denied any injuries to the right knee. He denied history of injury to the right knee while in the service. He stated that he believed that his right knee has been caused or aggravated by his left knee problem. He reported that he has been told that his right knee problem now is worse than his left knee problem and that he has been diagnosed with right knee severe patellofemoral arthritis and subchondral cystic changes and possible medial meniscus tear. Following physical examination, the examiner diagnosed right knee degenerative joint disease with degenerative joint disease in three compartments with severe patellofemoral arthritis and subchondral cystic changes and medial meniscus degeneration with a Baker's cyst. The examiner opined that it is less likely than likely that his knee is related to his military service since the Veteran had no history of any injury in service to his right knee. The examiner opined that it is less likely than not that the right knee condition is secondary to the left knee condition and it is less likely than not that the right knee condition was aggravated by the left knee condition. The examiner reasoned that the right knee condition is more severe than the left knee condition. The examiner noted that the Veteran is guarding and walking for his right knee rather than his left knee condition. The examiner also noted that the left knee condition is not severe enough to cause or aggravate his right knee condition. The Veteran underwent another VA examination in February 2011. He reported that right knee pain began around 2005 or 2006. He stated that he did not recall seeking medical attention for his knees until 2007 or 2008 at the Nashville VA medical center. He denied any specific injuries to the right knee. He stated that he had some knee problems on active duty, but he could not really give any specifics. He did not recall any problems with the right knee on separation from the Army. He denied recalling any problems with his right knee in the 1980s. He stated that he might have noticed trouble climbing into trucks in the 1990s, but he described this in a general fashion, stating that as he was getting older he noticed more symptoms. Following physical examination, the examiner diagnosed chondromalacia/ degenerative joint disease of the right knee. The examiner opined that it is less likely that the Veteran's current right knee condition first manifested on active duty. The examiner noted the Veteran's September 1979 entry for the right knee, as well as the separation Report of Medical History and Report of Medical Examination. The examiner noted that the Veteran did not recall or describe right knee problems during his military service time or at separation. The examiner stated that the Veteran was able to work as a truck driver following military service, did not recall any problems with the right knee in the 1980s, and did not describe symptoms that date back to military service. The examiner noted that the Veteran did not seek attention for the right knee until 2009. Thus, there are no records that show a chronic right knee condition that started or was present on active duty and there are no records or history that shows continuity of any right knee symptoms dating back to military service. Per the Veteran's history, the right knee symptoms started around 2005 or 2006, which is over 20 years after his military service. The Veteran testified at the April 2012 Board hearing that his right knee has bothered him for about three years. The Board finds that these VA medical opinions are probative, in that they are predicated upon an accurate review of the record and are supported by sufficient rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Moreover, the medical opinions failing to link the Veteran's current right knee disorder to service are consistent with the lack of any documented right knee treatment until 2009, with the 2009 treatment occurring approximately 28 years after the Veteran's discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Furthermore, the Veteran's treatment records fail to suggest that the Veteran's right knee disorder is impacted by his left knee disorder, and the Veteran has not offered any medical opinions linking his current right knee disorder to either his left knee disorder or to service. To the extent that the Veteran has reported that he experienced constant right knee symptomatology continually during and since service, the Board acknowledges that the Veteran is competent to report the onset and continuity of his right knee symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, any current report of continuity of symptomatology is belied by the Veteran's statement at the February 2011 VA examination that right knee pain began around 2005 or 2006, as well as the Veteran's testimony at the April 2012 Board hearing that his right knee has bothered him for about three years. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). As such, the Board finds that any assertions by the Veteran regarding continuity of symptomatology are not credible and should be afforded little probative weight. Additionally, while the Veteran is competent to describe his symptoms, as a lay person, he has not shown that he has specialized training sufficient to render a diagnosis for or determine the etiology of his right knee complaints as such requires medical testing and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, his opinion on this matter is not competent medical evidence. In any event, the Board finds the VA examination findings to be of greater probative value in this regard. In summary, the most probative evidence indicates the current right knee disability is not related to the Veteran's military service, or to the service-connected left knee disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right knee disability and the claim is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for a right knee disability, including as secondary to service-connected left knee patellofemoral pain syndrome, is denied. REMAND The Veteran's most recent VA examination with regard to the left knee disability was in October 2009. Following the October 2009 VA examination, VA treatment records reflect that the Veteran underwent left knee scope surgery in March 2010. As the current severity and extent of the Veteran's service-connected left knee disability are unclear, the Board finds that a new VA examination is necessary in order to fully and fairly evaluate his claim for an increased initial rating. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his current left knee symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain copies of any relevant VA records of treatment for the Veteran's left knee dated since April 2011. 3. Schedule the Veteran for a VA knee examination to determine the current nature and extent of his service-connected left knee condition. The claims file and relevant electronic treatment records should be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, including range of motion testing. The examiner should address the symptomatology and functional impairment associated with the Veteran's left knee disability. 4. After the development requested above has been completed, the record should again be reviewed and the claim re-adjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs