Citation Nr: 1307799	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO.  10-33 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an increased rating for service-connected chondromalacia of the right knee status post right patella fracture, (right knee disability), currently rated 10 percent disabling. 

2.  Entitlement to an increased rating for service-connected status post right wrist fracture (right wrist disability), currently rated 10 percent disabling. 

3.  Entitlement to service connection for left knee condition, as secondary to service-connected right knee disability.

4.  Entitlement to service connection for left hip condition, as secondary to service-connected right knee disability.

5.  Entitlement to service connection for right hip condition, as secondary to service-connected right knee disability.

6.  Entitlement to service connection for low back condition, as secondary to service-connected right knee disability.
REPRESENTATION

Appellant represented by:	Robert W. Gillikin, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel


INTRODUCTION

The Veteran served on active duty from April 1981 to December 1997.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), in Roanoke, Virginia. 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2011.  A transcript of the proceeding is of record.  In January 2013, the Veteran's attorney submitted additional evidence to the Board, stated that the record is complete, and requested a decision regarding these issues.  He is understood to have waived RO consideration of that evidence.  38 C.F.R. § 20.1304 (2012).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to increased ratings for a right knee disability and right wrist disability, and entitlement to service connection for a low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 


FINDINGS OF FACT

1.  The weight of the competent evidence is against a conclusion that the Veteran has a left knee disability that is etiologically related to service or service-connected knee right knee disability.

2.  The weight of the competent evidence is against a conclusion that the Veteran has a left hip disability that is etiologically related to service or service-connected knee right knee disability.

3.  The weight of the competent evidence is against a conclusion that the Veteran has a right hip disability that is etiologically related to service or service-connected knee right knee disability.


CONCLUSIONS OF LAW

1.  A left knee disability was not incurred in or aggravated by service nor is it the result of or proximately due to, nor was it aggravated by, service connected right knee disability.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). 

2.  A left hip disability was not incurred in or aggravated by service nor is it the result of or proximately due to, nor was it aggravated by, service connected right knee disability.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010).

3.  A right hip disability was not incurred in or aggravated by service nor is it the result of or proximately due to, nor was it aggravated by, service connected right knee disability.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The RO provided the appellant pre-adjudication notice by letter dated in December 2009, which was compliant with the legal requirements.  

Regarding the duty to assist, VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant a physical examination, obtained necessary medical opinions and afforded the appellant the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

At the hearing before the undersigned, the Veteran was asked to describe his relevant medical history, identify places of relevant treatment, and he indicated the file was essentially complete.  No pertinent evidence that might have been overlooked and that might substantiate the claims was identified.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

II.  Legal Criteria/Analysis

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 

Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service.  38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304. 

The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) 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 disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons.  38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 

A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 

The essential contention in this case is that the Veteran developed left knee, and bilateral hip disabilities due to added stress on these areas from over compensating for the service-connected right knee disability.  The Veteran concedes that there was no in-service injury to these joints nor does he complain of continuous left knee or hip problems since service.  As such, the Veteran contends service connection for these disabilities is warranted on a secondary basis.  

There is no evidence of any  left knee, or bilateral hip disabilities in service, and review of the service treatment reports are negative for these disabilities.  

After service, the Veteran first referenced left knee pain of two to three weeks duration in an August 2006 VA treatment note, and left knee arthralgia was diagnosed.  In October 2006, prepatellar bursitis of the left knee was diagnosed and in December 2006, it was noted to have resolved.  Post-service treatment records are negative for any complaints of or findings of a hip disability.  

The Veteran submitted a statement from Linda Harrison, RN, BSN, dated in November 2011.  She noted that the Veteran reported having pain in the left knee, bilateral hip, and low back secondary to his service-connected right knee disability.  She noted that research shows an injury to a joint can cause a secondary injury to other joints years later.  Also submitted was an internet article explaining that, after a joint is injured, poor biomechanical habits can cause injuries to other joints.  

The Veteran first has to establish he has the claimed disabilities, which in this particular instance left knee and bilateral hip disabilities.  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

The Veteran's claims file does not contain any medical record diagnosing a current left knee or hip disability of any type, despite the Veteran's complaints of pain.  Furthermore, Ms. Harrison did not actually opine that the Veteran has a current disability of the left knee or hips.  She merely stated that overcompensating for an injured joint may damage other joints.  Therefore, no probative weight is placed on this opinion, and the Veteran, as a lay person is not shown to be competent to state that he has a current left knee or hip disability.  Absent competent, probative evidence of the claimed disabilities, the appeal is denied.  

In reaching the decision above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims for the reasons stated above, the doctrine is not for application.  Gilbert, supra. 


ORDER

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

Entitlement to service connection for a left hip disability is denied.

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


REMAND

The Veteran apparently contends that the symptoms and manifestations of his right knee and right wrist disabilities have gotten worse since the last VA examination in December 2009.  He therefore needs to be reexamined to reassess the severity of his disability.  See 38 C.F.R. § 3.327(a) (2012); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); 

Regarding the Veteran's back, a VA examination was conducted in May 2011.  After a review of the Veteran's claims file and examination, minimal degenerative disease of the lumbar spine without functional abnormality was diagnosed.  The examiner also offered an opinion that the Veteran's low back condition was not caused by or the result of the service-connected right knee disability, but did not give an opinion as to whether it is at least as likely as not that the Veteran's low back disability was aggravated by the service-connected disability right knee disability.  Case law imposes this requirement.  Therefore, an additional VA opinion is necessary.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Relevant ongoing VA treatment records dating since January 2011 from the Salem, Virginia, VA Medical Center should be obtained 

2.  The Veteran should be afforded a VA examination to ascertain the severity of his service-connected right knee and right wrist disabilities.  Access to the claims file should be made available to the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished, including range of motion.  
 
If instability of the right knee is shown, the examiner should indicate the degree of such instability in terms conforming to the rating criteria; whether it is slight, moderate, or severe.

The examiner should address whether the Veteran's right knee or right wrist exhibits weakened movement, excess fatigability, or incoordination, and if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss.  The examiner should also opine whether pain could significantly limit functional ability during flare-ups or when the right wrist is used repeatedly over a period of time.  This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss.  

3.  Return the claims file to the examiner who conducted the May 2011 VA examination.  If that examiner is not available, then the file should be forwarded to another physician to obtain the requested opinion.  If an additional examination is necessary to respond to the questions, one should be scheduled.  

Following review of the claims file, the examiner should state whether it is at least as likely as not that the Veteran's low back condition, diagnosed as minimal degenerative disease of the lumbar spine, was aggravated (i.e., permanently worsened beyond the natural progress of the disease) by his service-connected right knee disability.  A full rationale for the opinion should be provided.  

5.  Then readjudicate the claims.  If any claim continues to be denied, send the Veteran and his attorney a supplemental statement of the case and give them time to respond. 

The appellant has the right to submit additional evidence and argument on the matters 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