Citation Nr: 1307556 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-16 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to the service connected right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from September 1988 to January 1992, including service in the first Gulf War. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a video hearing before the Board; however, he failed to appear at his scheduled hearing without good cause. In January 2011, the Board remanded the claim to obtain updated VA treatment records as well as release forms and additional records from the Veteran. No additional VA treatment records were available and the Veteran did not respond to VA's request for information. In May 2012 the Board remanded the issue of service connection for chronic fatigue syndrome due to undiagnosed illness. A November 2012 rating decision granted service connection for chronic fatigue syndrome due to undiagnosed illness and the issue is no longer on appeal. In May 2012 the Board reopened and remanded the claim for service connection for left knee disability, to include as secondary to service connected right knee disability for further development which has been completed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT A left knee disability was not first manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that a left knee disability is related to the service connected right knee disability or any other disease or injury incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for a left knee disability, to include as secondary to the service connected right knee disability, are not met. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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). Competent lay evidence is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease both pre-existed service and was not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). Upon entry to service, no knee complaints of any kind were noted. There is no evidence, let alone clear and unmistakable evidence, of any left knee disability prior to service. Although the Veteran reported experiencing left knee pain prior to service at a July 1999 VA examination, this is not clear and unmistakable evidence of a pre-existing left knee disability, and he is presumed sound upon entry. Service treatment records are silent to any complaints of or treatment for any left knee disability or pain. At a July 1999 VA joint examination the Veteran reported that his left knee pain began prior to service with intermittent episodes of anterior knee pain and that during service his symptoms worsened. He reported occasional catching episodes with squats. Physical examination found minimal tenderness about the patellofemoral joint on the left, x-ray was normal, and the examiner diagnosed patellofemoral syndrome, left. At a January 2003 VA examination the Veteran reported that his left knee began to bother him spontaneously in 2001 with no injury. He reported that he thought his left knee was due to compensation for his right knee. The Veteran reported rare locking symptoms. Upon examination he had a nonantalgic gait. The examiner was unable to ascribe any abnormalities to the left knee and no evidence of a chronic condition. The examiner diagnosed patellofemoral syndrome, left, by history. A January 2003 x-ray found mild narrowing degenerative joint disease of the bilateral knees. In an April 2003 letter Dr. C.P. reported that in May 2002 the Veteran had left knee pain, was prescribed Celebrex, and a MRI was recommended. Dr. C.P. stated that the knee injury was as likely as not caused by abnormal gait from the right knee. At a July 2003 VA orthopedic examination the Veteran denied any prior history of difficulty with his left knee and had no significant problems with regard to his left knee now. Upon physical examination the Veteran walked with a nonantalgic gait. The examiner noted that the x-ray of the left knee was unremarkable. No left knee disability was diagnosed. In a March 2004 the Veteran was seen by Dr. W.T. for complaints of left knee popping, locking and pain who thought there may be internal derangement. A subsequent MRI scan showed a left knee posterior horn medial meniscus inferior tear. At a May 2007 orthopedic surgery evaluation the Veteran reported ongoing bilateral knee pain and that he gave up doing quad exercises. Upon examination the physician found that plica of the left knee had resolved but there was bilateral pain with weak quads causing exacerbation of current ongoing pain. At a July 2012 a VA examination the Veteran reported no significant problems with regard to his left knee until six to seven years ago. The Veteran reported intermittent pain, stiffness and locking in the left knee when he squats. After review of the claims file and physical examination of the Veteran the examiner opined that the Veteran's left knee disability was less likely as not caused by or aggravated by the right knee disability. The examiner found no evidence of significant left knee arthritis in the x-rays and no evidence of any aggravation beyond the normal progression in examination or x-rays. The examiner explained that the Veteran does not maintain any abnormal gait to lead to overcompensation of the left knee or place any pressure on that side. The weight of the probative evidence is against the claim for service connection on a secondary basis. Although Dr. CP opined that the Veteran's left knee disability was caused by an abnormal gait due to the right knee disability, there is no objective evidence of an abnormal gait, limiting the probative value of this opinion. Despite multiple VA examinations and VA treatment records the Veteran has never been found to have an abnormal gait. The July 2012 examiner explained that the Veteran did not have an abnormal gait which would lead to overcompensation or added pressure on the left knee, undermining the conclusion that this problem which does not exist (abnormal gait) caused the left knee disability. The July 2012 examiner found there to be no evidence of any aggravation of the left knee beyond the natural progression. The Board finds the reasons provided for this medical opinion are clear and support by the post-service treatment records as a whole, which do not indicate an abnormal gait. Service connection on a secondary basis is not warranted. There is no evidence that the Veteran's left knee disability began in service or is anyway related to any event or injury in service; therefore service connection on a direct basis is not warranted. The Veteran believes that his left knee disability was caused by his right knee disability. He is competent to report symptomatology, such as knee pain, however, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on the etiology of his left knee disability and his views are of limited probative value. Even if his opinion was entitled to be accorded some probative value, it is far outweighed by the detailed opinion provided by the medical professionals who examined both him and the record and opined that his left knee disability was not related to his right knee disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a left knee disability, to include as secondary to a service connected right knee disability, is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Notice and Assistance 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A May 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter fully addressed all notice elements, informing the Veteran of the evidence required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in April 2007, after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. The Veteran reported receiving treatment from a private primary physician, Dr. V. L-M. In June 2012 the Veteran was sent an authorization and consent form, Form 21-4142, so that the VA could assist in obtaining these additional records however no response was received. The Veteran did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. A VA examination was conducted in July 2012; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion with rationale as to whether the Veteran's left knee disability was related to his service connected right knee disability. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (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 the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER Service connection for a left knee disability, to include as secondary to the service connected right knee disability, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs