Citation Nr: 1309645 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-06 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral pes cavus. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected bilateral pes cavus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active military service from November 1970 to January 1973. These matters come before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Fargo, North Dakota. In November 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in February 2010 when they were remanded to address due process concerns. These matters were again before the Board in July 2011, when the Board denied the Veteran's claims. The Veteran appealed the July 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2012, the Court vacated that portion of the Board's July 2011 decision dealing with the above stated issues and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The issues were remanded for further development by the Board in July 2012 to obtain a supplemental opinion addressing aggravation of bilateral knee and hip disabilities. In August 2012, a VA examiner provided the requested opinion. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A bilateral knee disability, to include arthritis, was initially demonstrated years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability. 2. A bilateral hip disability, to include arthritis, was initially demonstrated years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. A bilateral knee disability, to include arthritis, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. A bilateral hip disability, to include arthritis, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, in March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought. The agency of original jurisdiction (AOJ), issued a VCAA notice letter to the Veteran in October 2008, prior to the initial adjudication of the claims, that informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence and notified him that a disability rating and effective date will be assigned in event of award of any benefit sought per Dingess/Hartman. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, and VA examination reports. Additionally, the claims file contains the Veteran's statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Veteran was provided VA examinations in December 2008 and August 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The claim was remanded by the Board in July 2012 to obtain a supplemental opinion addressing aggravation of bilateral knee and hip disabilities. In August 2012, a VA examiner provided the requested opinion. Aside from the December 2008 VA examiner failing to address the aggravation issue, the Board finds that the VA examination reports were adequate to decide the claims of service connection because the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings to include nexus opinions with adequate bases for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Thus, further examination is not necessary regarding the issue on appeal. Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the 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 Board videoconference hearing, the Veterans Law Judge (VLJ) noted the elements of the claims that were lacking to substantiate the claims for service connection. The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between service and current disabilities. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence."). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran asserts that service connection is warranted for bilateral knee and hip disabilities. He specifically contends that such conditions are secondary to his service-connected bilateral pes cavus. The record reflects that the Veteran is currently service connected for bilateral pes cavus. The Veteran's service treatment records are entirely negative for any complaints of or treatment for any knee or hip disorder. His January 1973 separation examination report shows that on clinical examination, his lower extremities were normal. The first evidence of record noting the Veteran's bilateral knee and hip disabilities is the December 2008 VA examination report. As such, neither the Veteran nor the record suggests entitlement to service connection on a direct incurrence basis. There is no demonstration of any event in service to which the current disabilities at issue may be etiologically linked. The Board also finds that the Veteran's bilateral knee or hip arthritis did not manifest within one year after separation from service. The Board notes the 35 year gap between separation from service and the first record of a diagnosis of arthritis. No records show a diagnosis of arthritis prior to 2008. The Veteran does not contend, and the record does not demonstrate, that he had arthritis manifesting to a compensable degree within one year of separation from service. Therefore, service connection for bilateral knee and hip disabilities is also not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has a current diagnosis of bilateral knee and hip disabilities as documented by the Veteran's VA examination reports. To that effect, the December 2008 VA examination report establishes that the Veteran has been diagnosed with bilateral knee patellofemoral disease and bilateral hip degenerative joint disease. More recently, an August 2012 VA examination report also noted that the Veteran had evidence of arthritis on both the knee and hip x-ray examinations. However, the medical evidence of record does not establish that such conditions are proximately due to, the result of, or aggravated by the Veteran's service-connected bilateral pes cavus. In fact, the examiner from the Veteran's December 2008 VA examination, opined that such conditions are due to the Veteran's post-polio syndrome, which the Board notes is not service-connected. In reaching his conclusion, the examiner, who indicated that his opinion was based on the Veteran's history, a physical examination, a review of the medical literature, and a review of the Veteran's medical records, indicated: [The Veteran's] description of the weakness in the extremities is classic description of the post polio syndrome and his exam is consistent with that diagnosis. Therefore the bilateral hip and knee problems are less likely as not caused by or a result of his pes cavus. The Board finds that the December 2008 VA opinion to be competent, highly probative medical evidence as to whether the Veteran's current bilateral knee and hip disabilities were caused by his service-connected pes cavus. It is also consistent with the other medical evidence of record. To that effect, VA outpatient treatment records dated from March 2001 to July 2009 reflect diagnoses of post-polio syndrome with respect to the Veteran's complaints of weakness in the legs and muscle atrophy. In a May 2001 VA treatment report, the Veteran reported that ten years previously, he began noticing some vague symptoms of difficulty going up stairs and increased weakness in the hands, which was noted to be consistent with post-polio syndrome. Private treatment records covering the period of November 2006 to June 2007 reflect the Veteran's problems with mobility, leg swelling, and progressive lower extremity weakness. In May 2007, a private physician noted that the Veteran had multifactoral lower extremity neurologic impairment, consistent with peripheral neuropathy than actual severe progressive polio weakness. The physician added that the Veteran's nerves were clearly predisposed from his old polio and he indeed might have some changes from that, but he also carried a diagnosis of longstanding diabetes, probably in poor control. Furthermore, in August 2012, another VA examiner opined that the Veteran's bilateral knee and hip disabilities were not aggravated by his service-connected bilateral pes cavus. The examination was based on a complete review of the claims file. Although the VA examiner appears to have mistakenly checked the wrong box indicating that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness," it is clear that his opinion was intended for secondary service connection, as reflected in the following rationale: [The Veteran] has evidence of arthritis on both the knee and hip X[-]rays. Complaints of hip and knee pain are common in people with pes cavus. ... The biomechanical stress caused by the pes cavus is due to the lack of shock absorbency of the rigid foot. I cannot find anything in the medical literature, however, to support the contention that pes cavus can aggravate preexisting hip or knee arthritis. Therefore, the medical evidence of record does not show that that the Veteran's bilateral hip and knee disabilities were either caused or aggravated by his service-connected bilateral pes cavus. At his November 2009 Board hearing, the Veteran essentially argued a position that service connection for his bilateral knee and hip disabilities is warranted secondary to his post-polio syndrome. However, as noted earlier, service connection for poliomyelitis is not currently in effect. Thus, his lay testimony as to the claimed relationship between his bilateral knee and hip disabilities and the nonservice-connected poliomyelitis is not relevant to the issues on appeal. To the extent that it may be argued that his service-connected pes cavus is a manifestation of his post-polio syndrome and therefore, the bilateral knee and hip disabilities are secondary to his service-connected pes cavus, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current knee and hip arthritis to his service or his foot disorder, the Board finds that the etiology of the Veteran's arthritis is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as joint pain; however he is not competent to render a medical diagnosis or etiology of arthritis in this case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). No medical evidence of record finds a relationship between the Veteran's bilateral knee and hip disabilities and his service-connected bilateral pes cavus. In contrast, the VA examiners in December 2008 and August 2012 noted that pes cavus may cause pain in the knee and hip joints but do not cause or aggravate the Veteran's bilateral knee and hip arthritis. Concerning this, the record primarily documents leg weakness but does not demonstrate specific complaints of knee or hip pain. Further, the Veteran has not alleged continuity of symptomatology of his bilateral hip and knee disabilities since service. As such, the Board is not required to address his credibility in this regard. The Board also acknowledges the testimony by the Veteran's father stating that the Veteran suffered from polio at age of 5 but was fully recovered by the time he enlisted for military service. He further stated that the Veteran's mother was a registered nurse and knew what to expect and how to timely treat her son's polio, which allowed him to fully recover unlike many unfortunate cases where permanent paralysis, or even death, resulted from polio. The Veteran's father believes that the Veteran's current neurological impairments, including weakness in the legs, are not post-polio syndrome because the Veteran was fully recovered from his childhood polio before his military service. The Board finds his observations to be credible, but not pertinent to the issues of service connection for bilateral knee and hip disabilities. His statements primarily address his observations of the Veteran's history of polio and progressive neurological impairment, which is not currently on appeal. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claims for service connection for bilateral knee and hip disabilities, to include as secondary to service-connected bilateral pes cavus. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected bilateral pes cavus, is denied. Entitlement to service connection for bilateral hip disability, to include as secondary to service-connected bilateral pes cavus, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs